- 1 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. …PETITIONERS (BY SRI. MADHUKAR M. DESHPANDE, ADVOCATE) 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. Digitally signed by RAKESH S HARIHAR Location: High Court of Karnataka, Dharwad Bench - 2 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 3 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 4 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 5 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 6 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 7 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 “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 - 8 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 9 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 10 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 11 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 12 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 13 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 14 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 (Clause 8.2.3.1) Sl. No. (1) Height of Building m (2) Side and Rear Open spaces to be left around building m (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. - 15 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 16 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 17 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 18 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 19 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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: - 20 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 (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. - 21 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 22 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 23 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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). 9See sketch plan Block A Wing 1 produced by respondent No.1 and 2 along with synopsis dated 19.03.2025 - 24 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 25 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 26 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 27 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 28 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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. - 29 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 30 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 31 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 32 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 33 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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 - 34 - HC-KAR NC: 2025:KHC:34519 WP No. 3076 of 2024 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