M/S VISHNU SRI BUILDERS AND DEVELOPERS vs THE COMMISSIONER

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU



TH
DATED THIS THE 7 DAY OF APRIL, 2026

PRESENT

THE HON'BLE MR. JUSTICE D K SINGH

AND

THE HON'BLE MR. JUSTICE T.M.NADAF

WRIT APPEAL NO. 1637 OF 2025 (LB-BMP)

BETWEEN:


M/S. VISHNU SRI BUILDERS AND DEVELOPERS
A REGISTERED PARTNERSHIP FIRM,
REGISTERED UNDER THE PARTNERSHIP ACT, 1932,
HAVING ITS OFFICE AT NO.39, FLAT NO.4,
TH
NAGASHREE APARTMENT, 30 CROSS,
TH
7 BLOCK, JAYANAGAR, BANGALORE - 560 082.
REPRESENTED BY ITS
PARTNER SRI. SANDEEP ANAND,
S/O LATE B.M ANAND,
AGED ABOUT 44 YEARS.
…APPELLANT
(BY SRI. P.S. RAJAGOPAL. SENIOR COUNSEL FOR
SRI. SUDHAKAR G V., ADVOCATE)

AND:

1. THE COMMISSIONER
BRUHAT BANGALORE
MAHANAGARA PALIKE,
N.R SQUARE, HUDSON CIRCLE,
BANGALORE - 560 002.

2. JOINT DIRECTOR OF
TOWN PLANNING,
SOUTH ZONE,
BRUHAT BANGALORE MAHANAGARA PALIKE,
N.R. SQUARE,









Digitally
signed by
REKHA R
Location:
High Court
of Karnataka

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HUDSON CIRCLE,
BANGALORE - 560 002.

3. 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,
K.G ROAD, BANGALORE - 560 009.

4. RAJASRI APARTMENT OWNERS ASSOCIATION,
REGISTERED UNDER THE PROVISIONS OF THE
KARNATAKA APARTMENT OWNERSHIP ACT 1972
OFFICE AT RAJSRI APARTMENTS NO.413/251,
KARNATAKA APARTMENT OWNERSHIP ACT, 1972,
SRI. TRICHY SWAMY ROAD, HALAGEVADERAHALLI,
RAJARAJESWARI NAGAR, BENGALURU - 560 098.
REPRESENTED BY ITS AUTHORISED SIGNATORY
SRI.K. BHASKAR SASTRY.

5. SRI. AJAY PALIMARKAR NAYAK,
S/O VASANTH NAYAK,
AGED ABOUT 45 YEARS,
RESIDING AT FLAT NO.B-905,
RAJSRI APARTMENTS NO.413/251,
SRI.TRICHY SWAMY ROAD,
HALAGEVADERAHALLI, RAJARAJESWARI NAGAR,
BENGALURU - 560 098.

6. SRI. ABHAY DESAI,
S/O RAGHUNATH DESAI,
AGED ABOUT 42 YEARS,
RESIDING AT FLAT NO.A-201,
RAJSRI APARTMENTS NO.413/251,
SRI. TRICHY SWAMY ROAD,
HALAGEVADERAHALLI, RAJARAJESWARI NAGAR,
BENGALURU - 560 098.
…RESPONDENTS
(BY SRI. M.N. SUDEV HEGDE, AGA FOR R3,
SRI. MADHUKAR DESHPANDE, ADVOCATE FOR C/R4)

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THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, 1961, PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE ORDER DATED:03.09.2025
PASSED IN WP NO.3076/2024(LB-BMP), BY THE LEARNED
SINGLE JDUGE AND ETC.
THIS APPEAL, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE D K SINGH
and
HON'BLE MR. JUSTICE T.M.NADAF

ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE T.M.NADAF)
Respondent No.3 in W.P.No.3076/2024 is in appeal
before us under Section 4 of Karnataka High Court Act,
1961, challenging the order dated 03.09.2025 passed by
the Writ Court.

2. The Writ Court under the impugned order,
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

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the Fire NOC dated 19.04.2014. Further, till such
rectification of plan is made, the respondent No.3 is
restrained from putting up construction and 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.

3. Parties are referred to as per their rankings
before the Writ Court.

4. Heard Sri.P.S.Rajagopal, learned Senior counsel
appearing for Sri.Sudhakar.G.V, learned counsel for the
appellant and Sri.M.N.Sudev Hegde, learned Additional
Government Advocate for respondent No.3 and
Sri.Madhukar Deshpande, learned counsel for Caveator-
respondent No.4.

5. The facts germane to filing of the present
appeal are as under:

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6. The petitioners who are the members of Rajsri
Apartment Owners' Association filed the writ petition for
the following reliefs:
"(a) 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).
(b) Issue of a writ in the nature of certiorari or quash
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-H, H1 and H2).
(c) Issue of a writ in the nature of mandamus to the
Respondent No.1 and 2 to consider the
representation dated 25.11.2023 (Annexure-L)
submitted by the Petitioner No.1 and pass
appropriate order on the said representation in
accordance with law.
(d) Grant such other order/s as this Hon'ble Court
deems fit to grant in the circumstances of the case,
in the interest of justice and equity."


7. The petitioners were before the Writ Court,
calling in question the Revised No Objection Certificate
bearing No.GBC(1)195/2013 dated 13.06.2023
( 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
NOC.

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8. The petitioner has also sought for setting aside
of the modified sanction plan dated 31.08.2021 vide
Annexure-H, H1 and H2 , under which the builder had
sought to modify the sanctioned plan earlier consisted of
residential building into a mixed development including the
commercial space. The residential development consists of
Block B. The petitioner also sought for consideration of
representation ( Annexure-L ), addressed by the Bruhath
Bengaluru Mahangara Palike (BBMP), requesting for
issuance of a direction to restrict or stop the construction
work, while making out various grounds including reduced
access to Fire-Engine, vehicles and ambulances to reach
the destination in case of fire or any untoward incidents in
the apartment building.

9. Before the Writ Court, 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

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19.04.2014, issued at the stage of sanction of plan for the
residential development consisting of Wing A and B.


10. During the pendency of the writ petition, a
direction was issued to Karnataka State Fire and
Emergency Services Department to offer its views on
whether the movement of fire fighting vehicles is possible
on the setbacks area of the commercial building built in
front of the Rajashree Apartments at Khata No.413/251,
Ward No.160, Halagadevarahalli, Rajarajeshwari Nagar,
Bangalore, by holding a local inspection. The Director
General of Police and Director General, Karnataka State
Fire & Emergency Services visited the spot and conducted
the inspection and found the following details:
"In the order referred above the Honble High court of
Karnataka have directed the Karnataka State Fire &
Emergency Services department to offer its views on
whether the movement of fire fighting vehicles is possible
on the setbacks area of the commercial building built in
front of the Rajashree Apartments at Khata No.413/251,
Ward No.160, Halagadevarahalli, Rajarajeshwari Nagar,
Bangalore-560098.
As per Revised NOC The height of the Building is 36.90
mtrs for which required setback is minimum 12.00 mtrs all

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around the building where as the builder has claimed
relaxation ins setbacks and allowed setbacks of Min. 8.0
mtrs on all the sides Under TDR provision vide Development
Right Certificates.
Driveway space left:- As per Revised NOC, Proposed to
provide 8.00 Mtrs. Wide setback/driveway all around the
building line with a turning radius of minimum 9.00 Mtrs for
easy movement of fire vehicle.
Allowed Setbacks (open space) on all around the
building;-

The Karnataka State Fire & Emergency Services
has procured large fire fighting vehicles like Aerial Ladder

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Platform which are being used to Fight fire and rescue
during any disasters.. The required Driveway and setbacks
around the building for easy movement of this vehicles is
min. 8.00 mtrs.
Since as the required Setback/Driveway of 8.00
mtrs is not available around this, building. It is difficult to
conduct rescue operations during an emergency as the
easy movement of Aerial ladder Platform is not possible.
The above mentioned facts is submitted for your
kind information."

11. The Director General of Police and Director
General, Karnataka State Fire & Emergency Services has
stated that Department have procured large fire-fighting
vehicles like Aerial Ladder Platform which are being used
to fight fire and rescue during any disasters. The required
Driveway and setbacks around the building for easy
movement of this vehicle is minimum 8.00 mtrs. Since the
required Setback/Driveway of 8.00 mtrs is not available
around this building, it is difficult to conduct rescue
operations during any emergency as the easy movement
of Aerial ladder Platform is not possible.

12. Upon the said report, a further report has been
called from the BBMP. The BBMP has filed its report,

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wherein also it is clearly stated that towards south the
setback maintained is below 8.00 mtrs. In that view of the
matter the learned Single Judge considering these aspects
and the importance of rescue operations in view of any
event of unfortunate disaster, following the judgment of
the Supreme Court in RAJENDRA KUMAR BARJATYA
AND ANOTHER VS. U.P AVAS EVAM VIKAS PARISHAD
1
AND OTHERS and in M.I.BUILDERS (P) LTD. VS
2
RADHEY SHYAM SAHU opined that the Supreme Court
in above decisions has categorically held that "….If
construction is made in contravention of the Acts/Rules, it
would be construed as illegal and unauthorised
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" and further held
that "….No question of moulding a relief can arise as the

1
2024 SCC Online SC 3767
2

1999 6 ACC 464

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builder made construction on the basis of the interim order
of this Court at its own risk" , proceeded to allow the writ
petition and passed the orders, which we have already
stated above. It is this order passed by the learned Single
Judge is called in question in this appeal.

13. Sri.P.S.Rajagopal, learned Senior counsel
submits that there are no rules fixed as such to maintain
setbacks more than 8.00 mtrs. There is a sanctioned
building plan, by the appropriate authority clearly shows
that 8.00 mtrs of setbacks has already been provided on
all the sides. Learned Senior counsel has filed a memo
with documents and submits that the Karnataka Fire Force
(Amendment) Act, 2023 to Section 13 comes into effect
from the date of the amendment for the first time, which
prescribes No Objection Certificate from the Karnataka
State Fire and Emergency Services Department. Learned
Senior counsel further submits that the plan is sanctioned
in terms of the existing rules. In these circumstances the

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order passed by the Writ Court is against the provisions
and required to be set aside.

14. Sri.Madhukar Deshpande, in contrast submits
that in view of the order passed by the Writ Court, an
inspection was carried on by the Fire and Emergency
Services Department, which clearly suggests that the
driveway space left, as per revised NOC, proposed to
provide 8.00 mtrs wide setback/driveway all along with
the building line with a turning radius of 9 mtrs for easy
movement of fire vehicle, with the opinion that as the
required setback of 8.00 mtrs is not available around the
building, it is difficult to conduct rescue operations during
the emergency as the easy movement of Aerial ladder
platform is not possible. Even the report subsequently
called by the BBMP suggests and indicates that the
setback left is not 8.00 mtrs, but less than the same
towards South and sought to dismiss the appeal.

15. Sri.Sudev Hegde, learned Additional
Government Advocate argued in the same line with Sri

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Madhukar Deshpande and supported the judgment of the
Writ Court.

16. Having considered the rival submissions, we
have gone through the entire order passed by the Writ
Court. The Writ Court having considered exhaustively and
elaborately all the factors which has driven the Writ Court
to pass the order, including the violation of fire safety
norms stated in paragraph No.24 of the judgment,
referring to the judgment of the Supreme Court in
SUPERTECH LIMITED VS. EMERALD COURT OWNER
3
RESIDENT WELFARE ASSOCIATION AND OTHERS
and upon considering the report dated 12.07.2024
submitted by the Office of the Direct General of Police and
Direct General, Karnataka State Fire and Emergency
Services and State Disaster Response Force and also
relying on the judgments in RAJENDRA KUMAR
BARJATYA AND M.I.BUILDERS (P) LTD supra allowed
the writ petition with directions.

3

(2021) 10 SCC 1

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17. Considering the facts involved in the case on
hand, the learned Single Judge, after going through the
entire material on record and relying on the judgment of
the Supreme Court in Supertech Supra, has thus
observed in paragraph No.27 and 28:
"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).

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)".


18. Further, at paragraph No.35, the writ Court has
clearly observed as under:
"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

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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."



19. The writ Court in paragraph No.39 has held on
the contention of the appellant that the petitioner was
pursuing parallel remedy by way of suit and the
withdrawal of suit goes against the petitioner to seek any
remedy before the writ Court. The writ Court in paragraph
No.39 has answered the said contention stating that the
Fire and Emergency Services Department was not made as
a party in the suit, and no adjudication on the validity of
the Fire NOC could have been adjudicated upon in the
absence of such department and further held that the
withdrawal of the suit would not have the effect of tying
the hands of the Constitutional Court seeking to enforce
the statutory rights and accordingly rejected the
contention. The contentions and consideration thereof by
the writ Court are in paragraph No.39 which reads as
under:

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"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
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."



20. The very contention of the appellant-
respondent No.3 on the premise that the sanction plan is
an administrative decision and accordingly the petitioner
should have approached the Appellate Authority under the
provisions of the Act, has been considered by the writ
Court and rejected in paragraph No.40 which would read
as under:
"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 in terms of zoning regulation 3.6. distance was

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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."



21. We have noticed from the inspection report of
the fire department, in terms of the direction issued by
this Court, that the setback as contented by the appellant
before us has not been left and even if it is left since the
turning radius of fire engines with Aerial Ladder is more
than 9 metres and no sufficient space is available on the
spot for easy movement of the fire vehicles, in the event
any disaster. The builder in the case on hand knew it very
well regarding the permissible construction, however for
best reasons known to him not left the setback, which is
clear from the report of the fire department.

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22. Sri.Rajgopal, learned Senior counsel submits
that the direction issued works hard on the petitioner,
when the set back as provided under the modified
sanctioned maintained. Further stressed more emphasis
on Act of 2023 stated supra. A highly technical argument
that the law has been subsequently enacted cannot be
countenanced when it comes to the involvement of larger
public interest, safety and security of the residents of the
building complex, under the constitutional norms.

23. We are alive to the situation that the zonal
regulations and planning do result in hardship to the
individual property owners or the developers as their
freedom to use their property the way they like, as the
same are subjected to regulation and control. Even if they
feel to that extent prevented, but the said reason alone
cannot be termed controlling regulations as arbitrary or
unreasonable. The report furnished by the fire
department, as we have already noticed above, speaks of
the real truth of the situation of the building, where it

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would become very difficult for the Fire Department to
control and handle any unforeseen disaster, as there is no
proper free passage to move the heavy vehicles with aerial
ladder. The high rise buildings with pocket apartments,
regardless the luxury they provide in the apartments
cannot be permitted to stand at the risk of General Public
particularly the residents of the building and others in the
neighbouring and nearby vicinities. This is based on the
principle that the private interest stands subordinate to
the public interest and public good. The exercise of such a
governance by the local authorities are justified on
account of its being reasonably necessary for the public
health, safety and general welfare of the residents of the
apartment as well as nearby vicinities.

24. In these circumstances, the regulations and
restrictions with respect to restriction on height, number of
stories and other structures including percentage of Flat
that may be occupied, the size of open spaces and density
of population all matters in order to achieve a larger public

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safety and general welfare. In these circumstances, the
proper set back provisions around the building, average
alignments and structural alterations become
indispensable. In that view of the matter, any deviation
which is at the cost of the public safety at large cannot be
condoned and brought in line, except taking the actions to
make it in line by providing space including the demolition
of the extent of building which has become an obstacle in
the free passage of movement of vehicles including heavy
fire engines with other safety equipments. The
construction by the professional builders stand on a
different footing than that of a private individual
constructing his own building. The professional builder is
supposed to understand the law and all other regulations
and deviations, if any, keeping in mind the larger public
interest in the apartment as well as in and around the
apartment structures and neighbouring vicinity. Any
shortfall be assumed as deliberate and done with an
intention to earn profit, deserve to be dealt with sternly,
so as to act as a deterrent in future.

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25. The Supreme Court in catena of cases, with
respect to deviation of plan and short of setbacks, held
that stern action be taken against the builders who
violates the building plan, especially while leaving the
setbacks for free passage of vehicles and other emergency
movements of vehicles like fire, police, ambulance etc.

26. A perusal of report by the Fire department
dated 12.07.2024 along with the sketch of the building
and the setback left clearly would show that the vehicle
movement with Aerial ladder is not possible in the
emergency rescue operations. In that view of the matter,
on the prime point of larger interest of the residents of the
apartment as well as in the neighbouring vicinity in view of
the categorical report dated 12.07.2024 by Fire
Department, we are not inclined to accept the submissions
made by learned Senior counsel.

27. We find no infirmities in the order passed by the
Writ Court, which is well reasoned on considering
exhaustively the entire material placed before it. In that

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view of the matter the writ appeal fails and accordingly,
dismissed .


Sd/-
(D K SINGH)
JUDGE


Sd/-
(T.M.NADAF)
JUDGE


RR
List No.: 1 Sl No.: 1 ct-vn