Karnataka High Court
Rajasri Apartment Owners Association vs The Commissioner on 3 September, 2025
Author: S.Sunil Dutt Yadav
Bench: S.Sunil Dutt Yadav
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE S SUNIL DUTT YADAV
WRIT PETITION NO.3076 OF 2024 (LB-BMP)
BETWEEN:
1. RAJASRI APARTMENT OWNERS ASSOCIATION,
REGISTERED UNDER THE PROVISION OF
KARNATAKA APARTMENT OWNERSHIP ACT, 1972
OFFICE AT RAJSRI APARTMENTS NO.413/251,
SRI. TRICHY SWAMY ROAD, HALAGEVADERAHALLI,
RAJARAJESHWARI NAGAR, BENGALURU-560098.
REPRESENTED BY ITS AUTHORISED SIGNATORY,
SRI. K. BHASKARA SASTRY.
2. SRI. AJAY PALIMARKAR NAYAK S/O VASANTH NAYAK P.,
AGE. 45 YEARS, R/AT FLAT NO.B-905,
RAJSRI APARTMENTS NO.413/251,
SRI. TRICHY SWAMY ROAD, HALAGEVADERAHALLI,
RAJARAJESHWARI NAGAR, BENGALURU-560098.
3. SRI. ABHAY DESAI S/O RAGHUNATH DESAI,
AGE. 42 YEARS, R/AT FLAT NO.A-201,
RAJSRI APARTMENTS NO.413/251,
SRI. TRICHY SWAMY ROAD, HALAGEVADERAHALLI,
RAJARAJESHWARI NAGAR, BENGALURU-560098.
Digitally signed
by RAKESH S
HARIHAR
...PETITIONERS
Location: High
Court of (BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE)
Karnataka,
Dharwad Bench
AND:
1. THE COMMISSIONER,
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE, HUDSON CIRCLE, BANGALORE-560002.
2. JOINT DIRECTOR OF TOWN PLANNING,
SOUTH ZONE,
BRUHAT BENGALURU MAHANAGARA PALIKE,
N.R.SQUARE, HUDSON CIRCLE, BANGALORE-560002.
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3. M/S VISHNU SRI BUILDERS AND DEVELOPERS
A PARTNERSHIP FIRM,
REGISTERED UNDER THE INDIAN
PARTNERSHIP ACT 1932,
REGISTERED OFFICE AT NO.39, FLAT NO.4,
NAGASHREE APARTMENT, 30TH CROSS,
7TH BLOCK, JAYANAGAR, BENGALURU-560082.
REPRESENTED BY ITS PARTNER,
SRI. B.M. ANAND.
4. THE DIRECTOR GENERAL OF POLICE,
COMMANDANT GENERAL,
HOME GUARDS AND DIRECTOR OF CIVIL DEFENCE AND
DIRECTOR GENERAL KARNATAKA STATE FIRE
AND EMERGENCY SERVICES,
OFFICE AT NO.1, ANNASWAMY MUDALIAR ROAD,
BENGALURU-560042.
...RESPONDENTS
(BY SRI. K.B. MONESH KUMAR, ADVOCATE FOR R1 & R2
SRI. UDAY HOLLA, SENIOR COUNSEL FOR
SRI. G.V. SUDHAKAR, ADVOCATE FOR R3
SMT. B.P. RADHA, AGA FOR R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA 1950, PRAYING TO CALL FOR THE
ENTIRE RECORDS LEADING TO THE MODIFIED SANCTION PLAN
BEARING NO.BBMP/Addl.Dir/JD South/LP/0021/20-21 DATED
31/08/2021 ISSUED BY THE RESPONDENT NO.2 (ANNEXURE-G, G1
AND G2) AND ISSUE OF A WRIT IN THE NATURE OF CERTIORARI OR
QUASH THE REVISED NO OBJECTION CERTIFICATE BEARING
NO.GBC(1)195/2013, DOCKET NO.KSFES/NOC/059/2023 DATED
13/06/2023, ISSUED BY THE RESPONDENT NO.4 (ANNEXURE-Q) &
ETC.
THIS WRIT PETITION PERTAINING TO BENGALURU BENCH
HAVING BEEN HEARD AND RESERVED ON 15.07.2025 AND COMING
ON FOR PRONOUNCEMENT OF ORDER AT DHARWAD BENCH
THROUGH VIDEO CONFERENCING, THIS DAY, THE COURT MADE THE
FOLLOWING:
CORAM: HON'BLE MR. JUSTICE S SUNIL DUTT YADAV
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CAV ORDER
(PER: THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV)
1. The present petition has been filed by the Rajsri
Apartment Owners Association and other local residents
calling in question the revised No Objection Certificate
(NOC) bearing No.GBC(1)195/2013 dated 13.06.2023 at
Annexure Q. By virtue of the said NOC, the Karnataka
State Fire and Emergency Services Department -
Respondent No.4, while considering the request for grant
of NOC pursuant to a proposal of revised plan, has granted
an NOC.
The petitioner has also sought for setting aside of the
modified sanction plan bearing No.BBMP/Addl.Dir/JD
South/LP/0021/20-21 dated 31.08.2021 at Annexure H,
H1 and H2. By virtue of the said modified sanction plan,
the respondent No.3 who is the builder had sought to
modify the sanction plan which earlier consisted of
residential building into a mixed development including a
commercial space. The residential development consists of
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Block A - Wing A and B, and the commercial unit consists
of Block B1. The grievance of the petitioner as regards
such modified plan on various grounds is dealt with later.
Petitioner has also sought for consideration of the
representation at Annexure L which was addressed by the
petitioner No.1 to the Bruhath Bengaluru Mahanagara
Palike (B.B.M.P) requesting for issuance of a direction to
stop construction while making out various grounds
including reduced access for Fire-Engine Vehicle and
Ambulances to reach destination in case of fire or any
untoward incidents in the apartment building.
2. The brief facts are that the respondent No.3 -
builder/ developer was granted a sanction plan on
12.01.2015 to put up a residential building consisting of
Wing - A and B and had sold the apartment units. It is
also made out that the partial occupancy certificate was
granted with respect to residential tower of Wing - B as on
07.01.2019. Subsequently, it appears that on 31.08.2021,
1
The nomenclature is as per the Fire no objection certificate.
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the respondent B.B.M.P had issued modified building
sanction plan which permitted development of commercial
building as well. Various contentions have been raised
assailing the modified sanction plan as well as questioning
validity of revised Fire NOC which had diluted the
conditions imposed in the No Objection Certificate dated
19.04.2014 which was issued at the time of granting
sanction for the initial stage of development of residential
development of Wing A and B.
3. It is noticed that the petitioner No.1 had filed
O.S. No.8114/2023 seeking for relief of declaration
regarding entitlement to maintenance of setback area of
8.00 meters as specified in the NOC, further declaration
that he was entitled for easementary rights and direction
to demolish unauthorized constructions. It is necessary to
notice that the said suit came to be withdrawn during the
pendency of the present petition.
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4. Heard Sri. Madhukar M. Deshpande, learned
counsel appearing for the petitioners and Sri. K. B. Monesh
Kumar, learned counsel for respondents 1 and 2 and Sri.
Udaya Holla, learned Senior Counsel appearing for
respondent No.3 and Smt. B. P. Radha, learned Additional
Government Advocate for respondent No.4.
5. Though various contentions have been raised
by both sides, to avoid repetition they are dealt with infra
while recording a finding regarding such contentions.
6. At the outset it must be noticed that the scope
of the present lis is limited to examination of the
requirement of maintaining the setback around the
residential constructed portion of Wing B as provided
under the Fire NOC dated 19.04.2014, issued at the stage
of sanction of plan2 for the residential development
consisting of Wing A and B. In the synopsis of submission
filed by the petitioner on 02.05.2025, the petitioner would
limit the lis to the following:
2
Sanction Plan dated 12.01.2015
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"The Respondent No.3 in the guise of issuance of
modified sanction plan dated
31.08.2021(Annexure-H to H2) is constructing the
commercial building without leaving 8 meters
setback between Residential Block (Wing B) and
Commercial Block. The Petitioner No.1 Association
has no objection to construct the commercial
building, if the Respondent No.3 leave 8 meters
setback between Residential Block (Wing-B) and
Commercial Block."3
7. It is to be noticed that the setback as regards
residential development of Wing A and B in terms of the
Fire NOC dated 19.04.2014 is as follows:
"4. Width of open space (Setbacks):-
Wing - A & B - joined together
Front (East) : Minimum 8.00 mtrs.
Rear (West) : Minimum 8.00 mtrs.
Side (North) : Minimum 22.60 mtrs.
Side (South) : Minimum 8.00 mtrs.
The height of the Building is 37.70 mtrs for which
the required setback is minimum 12.00 mtrs all
around the Building, where as the Builder has
3
Part IV para 4 of synopsis dated 02.05.2025
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allowed setbacks of Minimum 8.00 mtrs on the
Eastern, Western and Southern side of the
building under TDR provision vide Development
Right Certificates."
The Fire NOC further specifies incorporation of fire
safety measures and under Condition No. C at point 1
relating to regulation of the open space, it is provided as
follows:
"This driveway all around the building, should
always be kept free and clear... The total setbacks
shall be at even level without any structure and
projection up to a height of 5.00 mtrs."
There are certain stipulations under Condition E and
point No.5 which reads as hereunder:
"Plan & occupancy should not be changed without
informing the Fire and Emergency Services and
without taking clearance"
8. It must be noticed that the partial occupancy
certificate was granted on 07.01.2019 insofar as
residential apartment in Wing - B consisting of 140
dwelling units consisting of basement and 11 floors. The
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condition imposed while granting the occupancy certificate
at point 7 would be of relevance and reads as follows:
"7. The owner / Association of high-rise building
shall obtain clearance certificate from Fire Force
Department every two years with due inspection by
the department regarding working condition of Fire
Safety Measures installed. The certificate should be
produced to the corporation and shall get the
renewal of the permission issued once in two years."
9. It is made out from the facts that an application
was made for issuance of modified sanction plan which
was issued on 31.08.2021. In terms of the said modified
sanction plan, a commercial block was permitted to be put
up. The petitioners are aggrieved by the modified sanction
plan insofar as the commercial block is sought to be put
up encroaching upon the setback area of 8.00 meters
which was directed to be maintained around the residential
block Wing A and B.
10. A perusal of the modified plan4 would also
reveal that residential building (Wing - B) was sought to
4
Modified sanction plan dated 31.08.2021
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be connected with the commercial building and it was
claimed that both the residential building and the
commercial building would form a single cluster and the
setback requirements would be on the outer edge of the
cluster of buildings.
11. The petitioners have objected to the
modification insofar as the set back around the residential
portion of Wing - B on the Eastern side that was sought to
be encroached upon while putting up the construction of
commercial unit.
12. A revised NOC has been issued on 13.06.2023
insofar as the modified sanction plan of 31.08.2021. In
terms of the revised NOC by the Fire Department though it
was specified that as per National Building Code, 2005
('NBC' for short) where the height of the building was 40
meters and open space of 12 meters was required to be
maintained. The developer had undertaken to maintain
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setback of 8.00 meters on all sides by obtaining relaxation
which was available on furnishing of TDR.
13. As asserted above, the grievance of the
petitioner was non-maintenance of the setback of 8.00
meters around the Wing - B on the Eastern side of
residential unit adjoining the commercial unit Block - B.
14. The Home Secretariat of Government of
Karnataka pursuant to the order passed in
W.P.No.38073/2010, wherein this Court had directed the
State Government to issue appropriate notification as
contemplated under section 13 of the Karnataka Fire
Services Act, 1964 ('the Act' for short), had issued a
notification dated 07.07.20115. The said notification
provided for obtaining of mandatory 'No Objection
Certificate' from the Fire and Emergency Services before
grant of building license as regards 'High rise' buildings. It
was further asserted that without compliance of fire safety
measures provided under building by-laws, Zonal
5
Notification bearing No. HD 33 SFB 2011, BANGALORE
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regulations, NBC, the B.B.M.P was prohibited from
granting occupancy certificate.
15. In terms of the said notification, it is clear that
the adherence to safety measures was required in terms of
measures provided for under building by-laws, Zonal
regulations and as also the NBC6.
16. The Division Bench of this Court once again by
its order dated 31.08.2015 in W.P.No.39874/2013
reiterated that "...for avoiding any future fire hazard we
dispose of this writ petition by directing the respondent to
strictly implement the notification date 07.07.2011."
17. In light of the above, clearly the requirement of
compliance with the NBC is mandatory. Accordingly, the
contention of the respondent developer that the
6
Clause 2 of the Notification reads as follows: "In High rise buildings, wherein fire safety
measures are required to be provided under the building bye laws/ Zonal regulations, national
Building Code as well as under other provision which are applicable, the builders, developers,
organizers, contractors, architects and engineers, society, association of persons etc
constructing buildings shall provide fire safety measures as per provisions and without such
measures, the BBMP shall not grant occupancy certificate.
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requirement of compliance with the NBC was only
directory and not mandatory requires to be rejected.
18. The NBC - 2016, under "PART 4 - FIRE AND LIFE
SAFETY", deals with various measures relating to fire
safety and safeguards against fire accidents by stipulating
adherence to technical aspects including maintenance of
Floor Area Ratio (see point 3.4.4.2). The said clause refers
back to the requirement of setback and open space in
PART 3 of NBC - 2016. Considering that the present
factual matrix deals with residential unit Wing - B, which
is a high rise building (37.20mtrs), PART 4 point 1.2 of
NBC specifically makes the chapter under PART 4
applicable to High rise buildings.
19. In terms of PART 3 of NBC - 2016, the setbacks
and open space to be maintained for high rise buildings
would be in terms of the following:
"Table 4 side and Rear Open Spaces for
Different Heights of Buildings
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(Clause 8.2.3.1)
Sl. No. Height of Side and Rear
Building Open spaces to
m be left around
building
m
(1) (2) (3)
i 10 3
ii 15 5
iii 18 6
iv 21 7
v 24 8
vi 27 9
vii 30 10
viii 35 11
ix 40 12
x 45 13
xi 50 14
xii 55 16
xiii 70 17
xiv 120 18
xv Above 120 20
1. For buildings above 24 m in height, there shall
be a minimum front open space of 6 m.
2. Where rooms do not derive light and
ventilation from the exterior open space, the width of
such exterior open space as given in col 3 may be
reduced by 1 m subject to a minimum of 3 m and a
maximum of 8 m. No further projections shall be
permitted.
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3. If the length or depth of the building exceeds
40 m. add to col (3) ten percent of length or depth of
building minus 4.0 m subject to maximum
requirement of 20 m."
20. It thus becomes clear that the open space to be
left around building of height of 40 meters would be 12
meters. The revised Fire NOC dated 13.06.2023 specifies
regarding setback/ open space to be maintained as
follows7:
"The height of the building is 36.90 mtrs, for which
the required setback is minimum 12.00 mtrs all
around the Building whereas the Builder has
allowed setbacks of Minimum 8.00 mtrs on all the
sides under TDR provisions vide Development
Rights Certificate".
Accordingly, though setback required for the height
of the building was 12.00 meters, in light of setback
relaxation of six meters builder was required to maintain
setback of six meters. However, builder had provided 8.00
7
Part B - Structure details indicating the fire prevention, fire fighting and evacuation measures o
be indicated in the drawings.
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meters of setback (see table 1 under clause 4.3 of Fire
NOC dated).
21. This Court on 26.06.2024 had directed the
respondent No.4 to apply its mind and submit opinion with
reference to the fire safety norms. In terms of the opinion
dated 12.07.2024 furnished by the respondent No.4, it is
stipulated that the setback is required to be maintained at
8.00 meters around the building after taking note of
relaxation of setback by virtue of TDR. A close scrutiny of
the sketch which is a part of the report would indicate that
the setback is calculated from the edge of the cluster of
the buildings including residential development and
commercial unit and not around each block.
22. Another relevant fact that requires attention at
this stage is that the petitioner is seeking to interconnect
the commercial unit Block B along with the residential unit
Block A - Wing B by a bridge and while noticing that Block
A - Wing A which is also a proposed residential block is
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sought to be linked with Block A Wing B which is also a
residential block, the residential blocks and commercial
block being sought to be interlinked, the developer asserts
that the entirety of development is a cluster and the
setback is to be calculated not individually around every
block but only around the cluster
23. The petitioner contests this very understanding
of the Fire Department which is in line with the
understanding of the builder.
24. This very contention in an identical factual
matrix has been taken note of by the Apex Court in
Supertech Limited v. Emerald Court Owner Resident
Welfare Association and Others8 [Supertech]. One of
the specific contentions raised before the Apex Court is
that the sanction of construction by a modified plan with a
reduced distance requirement between Block T-16 and T-
17 was in violation of National Building Code as well. The
judgment deals in detail with the objective of maintenance
8
(2021) 10 SCC 1
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of distance between buildings as units rather than between
building blocks. The relevant extracts are as follows:
"73. ...The prescription of a minimum distance also
has a bearing on fire safety. In the event of a fire,
there is a danger that the flames would rapidly
spread from one structure to adjoining ones.
Moreover, the presence of structures in close
proximity poses serious hurdles to fire-fighting
machinery which has to be deployed by the civic
body.
74. If a developer is left with the unbridled discretion
to define the content of the expression "building
block", this will defeat the purpose of prescribing
minimum distances, leaving the health, safety and
quality of life of flat buyers at the mercy of
developers. Before this Court, an argument has been
advanced that four towers out of the seventeen
towers in the plot are a part of one "building block"
and do not require maintenance of a minimum
distance. Before the High Court, the appellant
attempted to contend that all the buildings (that is all
seventeen towers) on Plot No. 4 of Sector 93-A Noida
would comprise of one "building block". The
inconsistency of the appellant's contention on
building blocks before the High Court and Supreme
Court points out the obvious flaw in it--that the
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designation of how many buildings constitute a
"building block" by the developer would undermine
the requirements prescribed by the Building
Regulations. As a matter of first principle, we are not
inclined to adopt the construction proposed by the
appellant. It will deprive the residents of urban areas
of the amenities of light, air and ventilation which are
essential to maintaining a basic quality of life. It will
also have serious ramifications on fire safety. The
developer cannot be allowed to subvert the
requirement of maintaining minimum distances
prescribed in the Building Regulations by unilaterally
designating independent towers as building blocks, in
the manner which the appellant has suggested
before this Court. Setting up a space frame or
providing for a common entry or exit would not make
two otherwise separate buildings as one consolidated
block.
107.2. The purpose of prescribing a minimum
distance requirement between two buildings is to
prevent transmission of fire for safe escape during
calamities, minimum ventilation, and to receive
natural daylight. In case the minimum distance
requirement between buildings with egress facing
another building is not complied with, then the
function of the egress (through window or balcony)
will be compromised due to the following reasons:
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(a) To avoid transmission of fire : According to NBC
2005, fire separation is defined as the distance from
the "external wall" of a building to the "external wall"
of another building. There is an increased possibility
for fire to be transmitted to the adjacent building
through windows. However, if the walls have no
openings, then the distance between the buildings
can be less since there is a lesser chance for
transmission of fire;
(b) Safe escape and rescue : As the height of the
building increases, there is an increased difficulty to
rescue residents in case of emergency situations. In
such cases, open balconies can be used to facilitate
rescue operations provided that the street has
sufficient width. As the height of the building
increases, for maximum safe inclination of the
ladder, the street has to be wider;
(c) Minimum ventilation : Minimum natural
ventilation is required for hygienic ventilation (i.e.
the removal of CO2, body odour, etc.), for heat
exchange and cooling of the building; and
(d) Natural daylight : When the distance between
two buildings is high, the building receives direct
sunlight.
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117. The reports of IIT, Delhi and IIT, Roorkee
clearly elucidate the difficulty in evacuation of
occupants in high rise buildings. The report states
that the distance between adjacent buildings needs
to be greater for taller buildings since the street has
to be wider for the maximum safe inclination of the
ladder. The reports also mention the reduction in
ventilation, sunlight and privacy in case the distance
between the buildings is less. Therefore, irrespective
of whether all or some of the units in the block have
an egress facing the adjacent building, the minimum
distance of 16 m will have to be complied with,
otherwise the purpose of providing the vent would be
functionally compromised.
D.3. Violation of Fire Safety Norms
125. The appellant requested for a fire NOC for the
construction of T-16 and T-17. On 11-9-2009, a
report was submitted to the CFO observing that the
road is wide enough for vehicles of the Fire Brigade
Department to reach the spot in case of emergency
situations. However, Clause 10 of the report states
that Part III and Part IV of the NBC 2005 will have to
be complied with during the construction of the
building and in case of non-compliance, the NOC
shall stand cancelled. Para 8.2.3.1 of the NBC 2005
prescribes a minimum of 16 m for the side and rear
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open spaces of buildings which are 55 m high and
above.
130. The temporary NOC that was given by the CFO
clearly states that the NBC 2005 must be complied
with. However, as shown above, the provisions of the
NBC 2005 have not been complied with. Therefore,
given that the rear distance requirement under NBC
2005 has not been complied with, the NOC given by
the CFO stands automatically cancelled in terms of
the Report dated 11-9-2009 and letter dated 18-8-
2011.
171.3. The sanction given by Noida on 26-11-2009
and 2-3-2012 for the construction of T-16 and T-17
is violative of the minimum distance requirement
under the NBR 2006, NBR 2010 and NBC 2005."
25. In the context of the above legal position, the
contention of the petitioner as regards insistance of
maintenance of setbacks around the residential building in
Block A Wing B of 8.00 meters in terms of Fire NOC dated
19.04.2014 will have to be seen.
26. In terms of Fire NOC dated 19.04.2014 a
setback of 8 meters is required to be maintained around
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the residential development of Block A Wing A and B. After
noticing that the partial occupancy certificate as been
granted on 07.01.2019 at annexure D as regards Block A
Wing B and the height of the said unit is 37.20 meters9,
the distance around residential unit as per the NBC
required to be maintained is 12 meters (see Part 3 -
8.2.3.1 - Table 4). Even if the loading of TDR is taken note
of it would be 6 meters but the builder himself has under
taken in the modified plan of 31.08.2021 to maintain 8.00
meters.
27. It must be noticed that the maintenance of
setback in terms of the NBC strictly speaking would be 12
meters. The contention of the respondents that the
setback is to be measured from the edge of the cluster of
buildings requires to be rejected in light of the law laid
down by the Apex Court in Supertech (supra).
9
See sketch plan Block A Wing 1 produced by respondent No.1 and 2 along with synopsis dated
19.03.2025
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28. The residential unit Block A Wing B being a high
rise building, the minimum distance from the commercial
unit Block B that is sought to be put up would require a
distance of 12 meters around it to be maintained. The
second Fire NOC consequent upon issuance of modified
plan including the commercial development while referring
to the NBC has reduced the minimum distance to be
maintained from 12 meters to 6.00 meters while observing
that 8.00 meters as undertaken to be maintained by the
developer would be sufficient and is to be maintained.
However, the second Fire NOC at annexure Q had
calculated the minimum distance from the edge of the
cluster of building which would not be the right position in
light of the observation made by the Apex Court in
Supertech (supra).
29. The only conclusion to be drawn is that the
distance between Residential unit Block A Wing B and the
commercial block though is to be maintained at 12.00
meters as per NBC, the loading of TDR being taken note
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of, the stand of developer to maintain 8.00 meters is to be
taken note of.
30. It is to be clarified that the procedure while
granting plan does contemplate that the final plan is
required to be issued only after Fire NOC is obtained. The
Fire NOC however in the present case has been obtained
for the modified plan of 38.01.2021 only on 13.06.202310.
If the Fire NOC is to be granted in terms of the NBC, then
the limit of 12 meters minimum distance from the next
building i.e., commercial block will have to be maintained.
In the present case, in light of loading of TDR, the
relaxation in setback would require 6 meters to be
maintained while voluntarily the developer has undertaken
to maintain set back of 8 meters. Before approval of plan
insofar as high rise building after NOC is obtained from
Fire and Emergency Services Department, such
requirement maybe taken note of and provision made in
10
In terms of GO No. HD33 SFB 2011 dated 07.07.2011 - clause 1 provides a prohibition
against granting building plans/ license for highrise building without NOC from Fire and
Emergency Services Department.
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the plan which may impact the setback and in certain
circumstance may require provision of open space beyond
the requirements under building bylaws/ zoning
regulations.
31. Though it is the case put forth by the B.B.M.P
as well as the builder that Fire NOC was not required for
commercial building Block B as it only comprised of two
basement, ground floor and two upper floors with height
of 10.50 meters as it would not be a highrise building,
however such contention does not take note of minimum
setback as regards residential building Block A wing B
which is a highrise building. Such requirement of setback
could not be altered by connecting of the commercial unit
by a bridge in light of the interpretation in Supertech
(supra).
32. The first Fire NOC dated 19.04.2014 would
continue to remain valid insofar as residential
development of Block A as the setback would have to be
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treated as regards residential block as a standalone unit. If
that were to be so, the modification of the plan nor the
second NOC could have the effect of reducing the setback
required for the residential development of Block A. In
light of the legal requirement to treat the residential
development as a standalone unit, the requirement of
setback as regards the residential unit is still to be
maintained. As the commercial unit Block B is a separate
development, it cannot have the effect of doing away with
maintenance of 8.00 meters around the residential
development of Block A.
33. It is further clarified that the Fire NOC as on
date is required in the case of high rise buildings and the
respondent No.3 has in the pleadings asserted that the
commercial unit as well as the construction in Block A
Wing A would be within the height not amounting to high
rise building and would not require a Fire NOC. While
technically, in light of the facts as made, a second Fire
NOC may not be required, that would have the effect of
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revival of First Fire NOC dated 19.04.2014, as Wing B of
Block A is high rise building and continues to be so.
34. It is necessary to clarify that the maintenance
of setback as required under the NBC as regards high rise
building would be a requirement dehors the Zonal
Regulations/ Building By-laws if the standards under the
Building By-laws/ Zonal Regulations provide for a
requirement lesser than that of the NBC. The requirement
of fire safety stipulations would flow from the notifications
under section 13 of the Karnataka Fire Services Act, 1964.
The notification of 07.07.2011 relating to High rise
building makes adherence to the NBC mandatory and
imposes an obligation on B.B.M.P. not to grant plan
without NOC from the fire department. It can be concluded
that insofar as high rise building, the notification dated
07.07.2011 would hold the field and impose the standards
which could even be beyond the requirement under the
Municipal Act/ Building By-laws/ Zonal Regulations.
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35. The requirement of fire safety measures to
ensure prevention of fire accidents as contemplated under
section 13 of the Act, may call upon maintenance of
certain standards insofar as open space to facilitate
movement of vehicles as contemplated under the NBC
discussed supra at para 19. Such requirement in particular
to high rise buildings as stipulated by Fire regulation will
have to be given precedence over the legislations
operating in the general field of planning and regulation of
building construction, as the Fire regulations operate in a
specialized filed.
36. The petitioners grievance being limited to set
back violation between Residential development of Block A
and commercial development of Block B, the court is
confining itself to such aspect.
37. Respondent No.4 is to demarcate the extent of
the building in Block-B (Commercial building) which has
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encroached on the set back area around Block A and have
such extent of construction removed.
38. Insofar as reliance on the pleading of B.B.M.P to
the effect that the second NOC and regarding maintenance
of minimum distance from the cluster of buildings, it could
be stated that the notification under section 13 of the Act
operating in a specialized field relating to fire prevention
will have to be implemented independent of the municipal
and planning laws. Further, if municipal and planning laws
impose stipulations which are in derogation with
stipulations under the Fire Act the stipulation under the
Fire Act would prevail in light of discussion made above.
39. Insofar as the contention relating to the
petitioner pursuing parallel remedies, it must be noticed
that the Fire and Emergency Services Department was not
a party in the suit for declaration and no adjudication
regarding the validity of the Fire NOC could have been
adjudicated upon in the absence of such department. The
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withdrawal of the suit could not have the effect of tying
the hands of constitutional court that is seeking to enforce
statutory rights and accordingly, this court rejects the
contention raised by the respondent No.3 in that regard.
40. The respondent No.3 has contended that the
sanction of plan is an administrative decision and
accordingly, the petitioner ought to have approached the
appellate authority. Insofar as such contention is
concerned, it would be apposite to take into consideration
the multiple affidavits filed before this Court by the
respondent B.B.M.P. In the affidavit dated 28.03.2024 the
Director of town planning has submitted that the B.B.M.P.
should have taken consent/NOC from the petitioners and
that the builder has tricked the B.B.M.P. in obtaining
permissions. It is the further stand that question of
clubbing residential unit with the commercial unit did not
arise as the builder was no longer the owner of residential
development having sold it and consequently taking note
of height of the residential building, minimum of 16 meters
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in terms of zoning regulation 3.6. distance was required to
be maintained between the two blocks. Thereafter, the
same authority in its affidavit dated 23.04.2024 has taken
a contra stand by stating that the development was a
'cluster of building' and regulation 3.6 of building zoning
regulation would not apply as the entire commercial and
residential block are sanctioned as a single cluster of
building. Such contradictory stand taken by the authority
does not inspire confidence of the Court. Accordingly, as
the contention that the petitioner should approach the
respondent authority by filing an appeal challenging the
sanction of plan is rejected. Even otherwise the present lis
is primarily as regards maintenance of setback in terms of
Fire Department stipulation and is not a dispute regarding
plan being in violation of building by-laws.
41. This Court vide its interim order dated
25.04.2024 had stayed the construction of commercial
unit Block B until last week of May 2024. I.A.No. 1/2025 is
filed by petitioner seeking for extension of interim order
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dated 25.04.2024 which is pending consideration. It is to
be noticed that any construction made during the
pendency of legal proceedings is done at the builder's own
risk and would be subject to the final outcome of the case.
The Apex Court in Rajendra Kumar Barjatya and Another
v. U.P. Avas Evam Vikas Parishad and Others11 has held
that "...If the construction is made in contravention of the
Acts/Rules, it would be construed as illegal and
unauthorized construction, which has to be necessarily
demolished. It cannot be legitimized or protected solely
under the ruse of the passage of time or citing inaction of
the authorities or by taking recourse to the excuse that
substantial money has been spent on the said
construction". Further, in In M.I. Builders (P)
Ltd. v. Radhey Shyam Sahu12, the Apex court has held
that "...No question of moulding a relief can arise as the
builder made construction on the basis of the interim order
of this Court and at its own risk".
11
2024 SCC Online SC 3767
12
(1999) 6 SCC 464
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42. Accordingly, the following:
ORDER
(i) It is hereby declared that the modified sanction plan at Annexure H, H1 and H2 would be kept in abeyance till the same is brought in conformity with the requirement of setback around the residential development Block A as noticed in the Fire NOC dated 19.04.2014.
(ii) Till such rectification of plan is made, the respondent No.3 is restrained from putting up construction in the setback area of Block A as stipulated in Fire NOC dated 19.04.2014.
(iii) It is needless to state that respondent No.4 is directed to demolish the construction made in the setback area around Block A Wing B insofar as the development in Commercial Block-B. In light of the above, the writ petition is disposed off.
Sd/-
(S SUNIL DUTT YADAV) JUDGE VP, CT:VP