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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 26TH DAY OF MARCH, 2013

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

WRIT PETITION NO.49732/2012 (LB-BMP) &

WRIT PETITION Nos.49920-35/2012 (LB-BMP)

BETWEEN:

1. AMIT BANERJI S/O DR. B C BANEJI AGED ABOUT 49 YEARS RESIDING AT FLAT NO.B 814, FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

2. ANISH CHERIAN

S/O P C CHERIAN AGED ABOUT 42 YEARS RESIDING AT FLAT NO.B 713 FLORIANA ESTATE, NO.53 SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

3. BIJU MATHEW

S/O P K MATHEW AGED ABOUT 42 YEARS RESIDING AT FLAT NO.B 613 FLORIANA ESTATE, NO.53 SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

4. DR. C N RADHAKRISHNAN

S/O C K NARENDRA AGED ABOUT 45 YEARS RESIDING AT NO.B 810 FLORIANA ESTATE, NO.53,

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SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

5. HRIDESH CHAND THAKUR S/O GAJENDRA CHAND THAKUR AGED ABOUT 41 YEARS RESIDING AT FLAT NO.A 604 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

6. MATHURA DUTT KALAUNY S/O GOPAL DUTT KALAUNY AGED ABOUT 65 YEARS RESIDING AT FLAT NO.A 402 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

7. MUKUN SURANGE

S/O PANDURANGA SURANGE AGED ABOUT 46 YEARS RESIDING AT FLAT NO.B 313, FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

8. NANAK GHOSH

S/O S B GHOSH AGED ABOUT 42 YEARS RESIDING AT FLAT NO.A 703, FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

9. PAWAN MATHUR S/O DR. MAHAVEER PRASAD MATHUR AGED ABOUT 40 YEARS RESIDING AT FLAT NO.A 306 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

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10. R MURUGESAN S/O RAMASWAMY AGED ABOUT 50 YEARS RESIDING AT FLAT NO.A 608 & 609, FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

11. RABINDRA NATH RAUL S/O DUARI RAUL AGED ABOUT 40 YEARS RESIDING AT FLAT NO.A 307 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

12. SOUMYA P DHAR S/O SHYAMAL K DHAR AGED ABOUT 39 YEARS RESIDING AT FLAT NO.B 213 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

13. RACHIT GUPTA

S/O AJAY SWAROOP GUPTA AGED ABOUT 37 YEARS RESIDING AT FLAT NO.A 306 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

14. SACHIN SAPRE

S/O SHASHIKANT SAPRE AGED ABOUT 42 YEARS RESIDING AT FLAT NO.A 304 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

15. SANJIB KUMAR AMBASTA

S/O GOKUL PRASAD AMBASTA AGED ABOUT 47 YEARS RESIDING AT FLAT NO.A 807

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FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

16. SANTHOSH KUMAR

S/O DR. H JAYARAM AGED ABOUT 35 YEARS RESIDING AT FLAT NO.A 104 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034

17. THIAGRAJAN SREENIVASAN

S/O P V SREENIVASAN AGED ABOUT 48 YEARS RESIDING AT FLAT NO.A 101 FLORIANA ESTATE, NO.53, SARJAPUR ROAD, 1ST CROSS 3RD BLOCK, KORAMANGALA BANGALORE-560 034 ... PETITIONERS

(BY SRI ADITYA SONDHI, ADV.) AND:

1. THE BRUHAT BENGALURU MAHANAGARA PALIKE N R SQUARE, BANGALORE-560002 REP. BY ITS COMMISSIONER

2. THE JOINT DIRECTOR,

TOWN PLANNING BANGALORE MAHANAGARA PALIKE N R SQUATE BANGALORE-560001

3. KARNATAKA STATE FIRE AND

EMERGENCY SERVICES NO.1, ANNASWAMY MUDALIAR ROAD BANGALORE-560 042 REP. BY DIRECTOR GENERAL OF POLICE AND DIRECTOR

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4. MR NARESH PATIL MAJOR, DIRECTOR, KOLTE PATIL DEVELOPERS LTD NO.22/11, 1ST FLOOR, "PARK WEST", BUILDING, VITTAL MALLYA ROAD BANGALORE-560001 POWER OF ATTORNEY HOLDER FOR MRS. RUKMINI DEVIPRASAD VERMA AND MR. C A JOSEPH

5. M/S KOLTE PATIL DEVELOPERS LTD. NO.22/1, 1ST FLOOR "PARK WEST" BUILDING VITTAL MALLYA ROAD BANGALORE-560001 REP. BY ITS DIRECTOR MR. NARESH PATIL

6. M/S ANKIT ENTERPRISES

A PARTNERSHIP FIRM HAVING ITS OFFICE AT SY.NO.53/1, JAKKASANDRA VILLAGE KORAMANGALA III BLOCK BANGALORE-560034 REP. BY MANAGING PARTNER ... RESPONDENTS

(BY SRI DR. R RAMACHANDRAN, ADV. FOR R1 & 2 SMT. MANJULA R KAMADOLLI, HCGP FOR R3 SRI G L VISHWANATH, ADV. FOR R4 TO 6)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE SANCTIONED PLAN DATED 23.3.11 ISSUED BY R1 VIDE ANNX-F; QUASH THE NOC ISSUED VIDE ORDER DATED 23.01.09 ISSUED BY R3 VIDE ANNX-D & DIRECT THE R1 TO TAKE ACTION AS PER LAW AGAINST THE R6 FOR CONSTRUCTING A HIGH RISE BUILDING IN VIOLATION OF THE BUILDING BYE LAWS, 2003 AND NATIONAL BUILDING CODE 2005.

THESE WRIT PETITIONS ARE HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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O R D E R

The petitioners are before this Court assailing the

‘No Objection Certificate’ (NOC) dated 23.01.2009 and

the sanction plan bearing No.03/09/10 dated

23.03.2011 which are impugned at Annexures-D and F

respectively. They are seeking that the same be

quashed. Petitioners are also seeking for issue of

mandamus to direct the first respondent to take action

against the sixth respondent for constructing a high-rise

building in violation of the Bangalore Mahanagara

Palike Building Bye-Laws-2003 (‘Building Bye-Laws’ for

short) and the National Building Code-2005 (‘Building

Code’ for short).

2. The petitioners are the residents of the flats

purchased by them in the residential apartment block

constructed by the fourth and fifth respondents, known

as ‘Floriana Estates’ situate at Sy.Nos.53/1 and 53/2,

Jakkasandra village, Begur Hobli, Koramangala. The

said apartment block was constructed as per the

sanction plan dated 16.02.2001. The petitioners are

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presently aggrieved by the construction of a high-rise

commercial building by the fifth and sixth respondents

since according to the petitioners, the same is contrary

to the Building Bye-laws and the Building Code more

particularly with regard to the fire safety norms.

3. The petitioners have also contended with

regard to the lapses committed by the fourth and fifth

respondent insofar as the construction of the residential

apartment block and in executing the sale deeds in

respect of the flats. The action taken by the petitioners

and other flat owners is also referred to. The proposal

of the fourth and fifth respondents to construct the

commercial complex in front of the residential

apartment block and the plan having been obtained in

the year 2005 is averred and it is contended that one of

the residents Dr.Ashok Kumar Pati had assailed the

plan sanctioned on 26.09.2005 by filing

W.P.No.18396/2006. Violations of the Building Bye-

laws and the Building Code had been raised in the said

petition since the requirement of 12 mts set back on all

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sides of the building and the requirement of the access

road having same width had not been complied. In the

said writ petition, the fourth and fifth respondents filed

an affidavit stating that the construction would not be

put up based on the sanction plan impugned therein. In

view of such undertaking, the petition was disposed of

with liberty to obtain fresh sanction plan and licence

and also liberty to the petitioner to put forth such

contentions, if the need arise. Subsequent thereto, the

petitioners and other residents noticed that the fourth

and fifth respondents had obtained bifurcation of

khatha which was objected to by the residents. When

the said proceedings was being considered, the portion

of the property bearing Sy.No.53/1 was sold to the sixth

respondent and the subsequent process of obtaining the

sanction plan was undertaken by obtaining NOC from

the different departments. According to the petitioners,

since the NOC issued and the plan sanctioned

subsequently is contrary to the Building Bye-laws and

the Building Code, they are before this Court.

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4. The fire safety requirements in respect of high-

rise building is referred to and it is contended that apart

from there being the requirement of set back of 12 mts

all around the building, the main street to which the

building abuts should also be of the width of 12 mts

and such street should also join another street which is

not less than 12 mts in width. Further, the passage

way and clearances should be maintained so as to

provide entrance to fire fighting vehicles. According to

the petitioners, the sixth respondent has not complied

with the said requirements nor is the abutting street

12 mts wide. As such the high-rise building cannot be

permitted and it is in that context the petitioners have

assailed the NOC and the sanction plan.

5. The fourth to sixth respondents have filed

detailed objection statement. They have contended that

the residential apartment block has been constructed

only on property bearing Sy.No.53/2, while the present

construction of the commercial building is on property

bearing Sy.No.53/1 over which the petitioners do not

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have any right whatsoever. It is therefore contended

that the petitioners cannot assail the construction being

put up in a different property as the bifurcation has

taken place as far back as on 26.02.2005. With regard

to the allegations made relating to the residential block,

the respondents have contended that the petitioners in

fact are defaulters in respect of payment of the

maintenance charges and as such they cannot complain

on any issue relating to residential block and cannot

seek for any equitable relief.

6. Insofar as the proposed commercial

construction, it is contended that though it is a high-

rise building, and high-rise building has been differently

defined in the Building Bye-Laws, Revised Master Plan

and Building Code, considering the height of the

building which is proposed to be constructed, the

required set back has been provided and on obtaining

the NOC, the building plan has been sanctioned in

accordance with law. The provisions relied on by the

petitioners therefore stands satisfied inasmuch as the

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width of the entrance to the building being constructed

in property No.53/1 is more than 4.5 mts and the set

back provided all around the building is 12 mts wide.

The building proposed on Sy.No.53/1 abuts the

Sarjapur Road, the width of which is more than 45

meters and as such there is no impediment whatsoever

to put up the construction. Hence, it is contended that

the writ petition is liable to be dismissed.

7. The Chief Fire Officer has filed an affidavit on

behalf of the third respondent seeking to justify the

NOC issued by them. It is stated that the said Officer

had inspected the spot and submitted a report on

25.11.2008 and thereafter the third respondent has

issued the NOC dated 23.01.2009. The building

proposed to be constructed is 39.95 mts in height

comprising of two basements, ground and nine upper

floors. The Building Code and Building Bye-laws are

referred and it is stated that the main street abutting

the same should be not less than 12 mts. wide and in

the instant case, since it abuts Sarjapur Main Road

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which is more than 45 mts, the requirement had been

complied. Keeping in view the height of the building,

the set back/rear open space to be left should be 12

mts which has been left by the fifth respondent. The

plan approved would have to conform to the NOC and

the second respondent would have to monitor the said

aspect.

8. In addition to the said affidavit, a report dated

06.03.2013 is filed on behalf of the third respondent on

inspecting the spot as ordered by this Court on

27.02.2012. A sketch has been enclosed to the said

report and the measurements of the main street

abutting the property wherein the proposed

construction is being made is indicated. It is stated that

the total road width of Sarjapur road is 46.32 mts of

which the service road measures 16.62 mts including

the median of 4.20 mts and foot path of 4.12 mts. The

measurements have been taken at two other points of

the same road wherein the measurements are almost of

the same width. In that view, it is reiterated that the

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requirements of the Building Bye-Laws and the Building

Code stand complied. As such, the NOC issued is

contended to be justified.

9. In the light of the rival contentions, I have

heard the learned counsel for the parties and perused

the petition papers.

10. Though contentions have been urged relating

to the inappropriate manner of construction made with

regard to the residential apartment block where the

petitioners are residents and certain lapses are also

urged relating to the execution of the sale deed;

similarly, though the contention against the petitioners

about non-payment of maintenance charges is also

made by the private respondents, they are all issues

which are not germane to the issue involved in the

instant petitions. Hence, those aspects need not be

adverted to in further detail. Further, even though the

petitioners have contended with regard to the khatha

having been illegally bifurcated in respect of the

property bearing Nos.53/1 and 53/2, the said issue also

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would not arise for consideration herein as the main

issue herein is the compliance of fire safety norms.

Notwithstanding the same, the further contention of the

learned counsel for the respondent that the petitioners

have no right to object to the construction being put up

in the property bearing No. 53/1 as their right is only

relating to the property bearing No.53/2 wherein the

residential apartment block is constructed also cannot

be accepted. These petitions cannot also be treated as

in public interest as contended by the learned counsel

for the respondent. Even if property No.53/2 is

considered as a separate and bifurcated property, the

petitioners would have access to the residential

apartment block through the main entrance and any

fire hazard in the proposed commercial building or in

the building in their occupation would effect their right.

As such, they would be entitled to raise the issue

regarding the fire safety standard being complied.

11. Hence, despite the commercial complex being

constructed by the sixth respondent in the property

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bearing No. 53/1, the question that would arise for

consideration herein is about the fire safety requirement

being complied by the private respondents enabling

issue of NOC and the plan being sanctioned in their

favour. Therefore, the rival contentions in that regard

would in any case arise for consideration.

12. In the instant case, the building proposed to

be constructed is a high-rise building as defined in

clause 2.46 of the Building Bye-laws is not in dispute.

The learned counsel for the petitioners has therefore

relied on Clause 23 which provides for the fire safety

requirements which reads as hereunder:

“23.0. FIRE SAFETY REQUIREMENTS

23.1. Building shall be planned, designed and

constructed to ensure adequate fire safety, to the

property and inhabitants and this shall be carried

out, in accordance with Part IV Fire Protection of

the National Building Code of India. The fire

fighting requirements, arrangements and

installations required in building shall also

conform to the provisions of Part IV Fire Protection

of the National Building Code of India.

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23.1.1. For buildings with ground floor + four

floors and above (or height of 15 mtrs and above),

clearance of the Director of Fire Services shall be

obtained regarding the Fire Protection Provision in

building.”

13. Further, Clause 3.4.6.1 (a) of Part IV of the

Building Code is relied upon which reads as hereunder:

“3.4.6.1 – For high rise buildings, the following

additional provisions of means of access to the building

shall be ensured (see Part 3 Development Control Rules

and General Building Requirements):

(a) The width of the main street on which the building

abuts shall not be less than 12 m and one end of

this street shall join another street not less than 12

m in width;

(b) The road shall not terminate in a dead end; except in

the case of residential building, up to a height of

30 m.

(c) The compulsory open spaces around the building

shall not be used for parking; and

(d) Adequate passageway and clearances required for

fire fighting vehicles to enter the premises shall be

provided at the main entrance; the width of such

entrance shall be not less than 4.5 m. If an arch or

covered gate is constructed, it shall have a clear

head-room of not less than 5 m. ”

(emphasis supplied)

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14. The requirement indicated therein is self

explanatory and the said requirement needs to be

satisfied before the NOC is issued by the third

respondent is also not in dispute. The official as well as

the private respondents contend that the requirement is

satisfied in the instant case as the main street is more

than 45 mts wide and as such, the NOC is granted and

the plan is approved.

15. The fact that the property bearing No.53/1

wherein the construction is proposed abuts the

Sarjapur Road cannot be in dispute. The said Sarjapur

Road has a service road attached to it from which the

direct access to the property is available is the factual

position which is depicted. In that circumstance,

though the width of the Sarjapur Road is more than 45

mts, inclusive of all its incidences such as median,

footpath etc., the issue raised is as to whether the same

would satisfy the requirement as a means of access. If

not the manner in which the width of a road should be

determined to find out as to whether it will satisfy the

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requirement as means of access needs consideration.

On this aspect, since the satisfaction of the statutory

respondent is relevant, the stand adopted on behalf of

the third respondent is to be noticed.

16. Through the affidavit filed by the Chief Fire

Officer, the action of issuing the NOC is sought to be

justified and it is contended that the plan sanctioned by

BBMP is in conformity with the requirement. Height of

the building being 39.95 mts is taken into consideration

and it is stated that the width of the road is more than

45 mts which is much in excess of the required 12 mts.

The report of the spot inspection carried out on behalf of

the third respondent along with sketch attached thereto

would disclose that the Sarjapur Road though stated to

have the width of more than 45 mts, it is not a single

stretch free of bifurcations. As per the sketch, it is

shown that the total width of Sarjapur Road measures

46.55 mts wide which includes the ‘median’ of 4 mts

which divides and separates the main Sarjapur Road

from the service road. The service road by itself

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measures 8.30 mts and along with its footpath

measures 12.40 mts. Including the ‘median’ and

‘footpath’, it measures 16.40 mts wide and thereafter

the main carriage way of Sarjapur Road is situate which

has a ‘divider’, further bifurcating Sarjapur Road itself

and thereafter the ‘footpath’ on the other end is situate.

17. Since clause 3.4.6.1(a) provides that the width

of the main street on which the building abuts shall not

be less than 12 mts as the means of access to the

building and it requires that such street should join a

street which is not less than 12 mts, the true purport of

such requirement needs to be examined with emphasis

on the phrase ‘ means of access to the building’. The

learned counsel for the petitioners would contend that

the fire safety requirement is that the abutting road

should be 12 mts wide, the intention being the free

movement of fire engines as admitted by the third

respondent in Para 10 of the report filed before this

Court. Therefore, it should be the actual width and not

notional or fictional width by including foot path and

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median which cannot be accepted as compliance. It is

his case that clause 3.4.6.1 of National Building Code

refers to means of access to the building as an

additional provision while prescribing the width of the

road. The book on ‘Words and Phrases’ is referred to

point out that reference to the word “access” therein in

relation to property is a ‘road without obstruction’. The

footpath and medians would cause obstruction and as

such it cannot be considered as a part of the means of

access.

18. The learned counsel for the private

respondents on the other hand would refer to the

Revised Master Plan 2015 and Zoning of Land Use and

Regulations 2007 and points out that clause 3.2 refers

to width of the road. It provides that while determining

the width of the road, it will include footpath, drains etc.

Where the road has a service road, the width of the road

shall be the aggregate width of service roads and main

roads. The learned counsel would also refer to the

report of the Chief Fire Officer filed herein to contend

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that the competent authorities after looking to all

aspects including the manner of determination of the

width of the road has arrived at the conclusion that the

width determined in such manner is sufficient. The

learned counsel for the statutory respondents No.1 and

2 and the learned Government Advocate for respondent

No.3 have not pointed out any specific provision which

enables the Chief Fire Officer to determine the width of

the road by including the median and footpath to record

compliance of the requirement of the width of road

which abuts the property.

19. In that view, though clause 3.2 referred by the

learned counsel for the private respondents is the only

indication available for determining the width of the

road, the same is contained in Chapter 3.0 of the

Zoning of Land Use and Regulations relating to set

backs and FAR. In fact, the means of access is

separately provided for in clause 3.8 of the same

chapter and as such the width to be taken for the

purpose of FAR cannot be considered as the same

yardstick when it relates to fire safety requirement and

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when the means of access as additional provision is the

relevant consideration. Further, Chapter-9 therein

separately provides for Fire Protection Requirements

and safety measures wherein the Building Code is made

applicable for that purpose.

20. In that context, if clause 3.4.6.1 in the

National Building Code is taken into consideration, it is

the additional provision made to provide for means of

access to the building in the case of high-rise building.

Hence, the width of the main street provided for in

3.4.6.1 (a) should relate to the actual width available by

way of means of access to the building without any

obstruction for movement. Therefore, while taking into

consideration the width of the main street to which the

building abuts, the notional or fictional width by

including medians and foot paths without further

consideration relating to the satisfaction regarding

means of access by the competent authority would not

be appropriate.

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21. Though having arrived at the above

conclusion, it cannot also be held that if the main street

abutting a plot where high-rise building is sought to be

constructed has been divided/bifurcated into the main

carriage way and the service carriage way, in all cases

the width of the service carriage way which abuts the

property alone should be taken into consideration to

determine the stipulated width of 12 mts and other

portions beyond it should be ignored. I am of the said

opinion for the reason that there is no material or

requirement whatsoever that is relied upon to show that

in all cases there is a set pattern for bifurcating the

roads into different lanes and the width of each lane,

more particularly the service carriage way would be

uniform in all cases. This Court cannot also lose sight

of the fact that such bifurcation of a road into different

lanes is made keeping in view several other convenience

of local authority including to aid traffic regulations and

to ensure smooth flow of vehicles.

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22. In that view, in certain cases, due to one way

traffic regulation, there could be possibility of there

being a single road of the maximum width since all

vehicles would move in one direction and there is no

need for bifurcation. There are cases where a single

road is divided by a ‘median’ into two in equal halves

keeping in view the type of vehicle movement in both

directions and also the nature of properties situate on

either side. There are cases where the service road is

available at only one side and there are ideal situations

where the main road itself is divided into two equal

halves separated by a median and thereafter service

roads at both ends which is further separated by a

median from the main road. In the present case, the

service road is on only one side. When these are the

different circumstances to which the said provision

would apply and when there is no clear indication as to

why the width of 12 mts has been indicated as the

desired width except the possibility being that the set

back area within the compound is 12 mts and therefore

the external means of access should be of the same

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width. What cannot also be lost sight of is that

notwithstanding that the set back provided is 12 mts,

the width of the main entrance to be provided to the

building is at a minimum of 4.5 mts. When this is the

position and the main streets are differently designed as

noticed above, despite the total width being more than

the requirement, if it is uniformly held that the road

abutting alone i.e., the service carriage way as in the

present case should by itself be 12 mts width, it would

amount to treating the similar property owners

differently only because the roads having a particular

total width have been designed differently over which

the property owners have no control.

23. Hence, a purposive interpretation of the

provision requires to be made to achieve the purpose of

ensuring that the means of access in any event should

be 12 mts as provided under the Building Code for use

in the case of emergency and that cannot be by applying

universal formula irrespective of the fact whether the

median or divider acts as an obstruction or not. The

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determination in that regard should be made by the

competent authority depending on the location of the

property on an objective assessment of the fact situation

and not on notional or fictional basis which does not

achieve the purpose of fire safety requirement in the

case of emergency. In this regard, what is to be

ascertained by the competent authority is that the

means of access which is available to the proposed

building is without obstruction from the main street by

way of approach to the entrance of the proposed

building and such means of access without obstruction

is of a minimum width of 12 mts so that the fire engine,

ambulance etc., would easily access the building and

evacuation also would be smooth.

24. To understand the said situation, the

measurements as indicated in the present case through

the sketch attached to the report of Chief Fire Officer

could be referred as an illustration. In the sketch, the

service carriage way abutting the entrance of the

proposed building, by itself is shown to measure 8.30

mts. The footpath and the medians cannot be

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automatically included to calculate the width of the

means of access as they are an obstruction to the

means of access. If the median dividing the main

carriage way of Sarjapur Road and the service carriage

way is continuous through the length of the road

without allowing any access to the Sarjapur Road main

carriage way from the service road carriage way or vice-

versa, then the median would be an obstruction to the

means of access into the building from Sarjapur Road

and the width of service carriage way being less than 12

mts would not be sufficient compliance. In such event,

the width of Sarjapur Road would not be available to be

added to the width of means of access, though it is

shown that the width of Sarjapur Road on one half

towards the side of the building i.e., between the divider

of the Sarjapur Road and the median between Service

Road and Sarjapur Road by itself measures 13.50 mts

in width.

25. On the other hand, if the median dividing the

service carriage way and the main Sarjapur Road is not

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continuous, but instead provides openings at certain

points so as to permit access from the service road

carriage way to the main Sarjapur Road carriage way

and vice-versa and such provisions are made at a

reasonable distance from the location of the proposed

building, both the service carriage way as also the one

half of the Sarjapur Road upto the divider would have to

be considered as a means of access to the proposed

building as being without obstruction. In such event,

the width of the service carriage way and the one half of

the Sarjapur Road together if it constitutes more than

12 mts, it could be taken into consideration for

satisfying the requirement. In the instant case, it is no

doubt seen that the width of one half of Sarjapur Road

carriage way by itself is 13.50 mts and the width of the

service carriage way is 8.30 mts. Hence, the total width

could be construed as 21.80 mts. However, the relevant

satisfaction that would have to be recorded by the

competent authority i.e., the third respondent is with

regard to the unobstructed means of access which

would depend on the provision made for interchanging

29

the movement on service road carriage way and

Sarjapur Road carriage way by providing means of

access by there being opening in the median for vehicle

movement from the Service Road to the Main Road and

vice-versa. Therefore, merely taking into consideration

the width of the road including the medians, dividers

and footpaths etc, without deciding these aspects would

not meet the requirements of ensuring the means of

access as a fire safety measure.

26. The question that would also arise is as to

what is the distance at which the opening in the median

should exist from the location of the building to be

considered as a reasonable distance from the proposed

building to consider it as a means of access to combine

the width of the two parallel roads divided by the

median to treat it as the total width of the road to

constitute the required width which in the instant case

is 12 mts. Though there is no definite indication

anywhere, in my opinion, the distance at which there is

an opening in the median as a means of access in

30

relation to the length and width as provided in Table 1

to clause 4.3 of the Building Code could be taken as a

guide. The same reads as hereunder;

Table 1 Width and Length of Means of Access

(Clause 4.3)

27. From the above table, it could be taken that

if there is an opening in the median at a point around

the distance of 400 mts from the building allowing

interchange of carriage way, the same would satisfy the

requirement of there being unobstructed means of

access by taking into consideration the width of the two

parallel roads on either side of the median to jointly

constitute the minimum width of 12 mts by means of

access to the proposed building. Though it need not be

Sl. No. (1)

Width of Means of Access m (2)

Length of Means of Access m (3)

i) ii) iii) iv)

6.0 7.5 9.0 12.0

75 150 250 400

v) vi)

18.0 24.0

1000 above 1000

(emphasis supplied)

31

with mathematical exactitude, there should be

substantial compliance to the satisfaction of the

competent authority who would record reasons for such

satisfaction to ensure transparency and avoid

arbitrariness.

28. In that background, a perusal of the

impugned NOC dated 23.01.2008 at Annexure-D would

disclose that the aspect relating to width of the road to

which the building abuts is adverted to in item-10(B).

The indication in sub-items (1) and (2) would disclose

that the width of the abutting Sarjapur Road has been

taken into consideration without reference to the

aspects as indicated above. Hence, to the said extent, it

would indicate the non-application of mind to determine

the means of access as contemplated but the total width

inclusive of the obstruction is taken into consideration.

This aspect will however require a reconsideration for

determination in the manner as stated above.

29. The other issue relates to the providing of

the set back/open space measuring 12 mts all around

32

the proposed building. This aspect of the matter has

also been indicated in the NOC at item-10(B)4. The

NOC provides that the set back/open space should be

12 mts on all sides which is the requirement. Further,

in item-10(C)(1) of the NOC it is provided that the said

set back of 12 mts shall be at even level without any

structure and projections up to a height of 5 mts and

the set back shall be always kept free from any

construction or utilisation like garden, landscaping etc.

30. The contention on behalf of the petitioners is

that the said width of 12 mts is not available and

certain extents have been utilized for other purpose. In

that regard, the approved plan at Annexure-F is referred

to indicate that only 6 mts has been left free and the

remaining area is shown for car parking. It is also

contended that on the utilization of land at the rear

portion for the proposed commercial building, what

would be available in front of residential apartment

block is only 9 mts which would be the access to the

residential building. In that regard, the correspondence

33

addressed by the Chief Officer, dated 15.03.2012

(Annexure-H) is referred. On behalf of the respondents it

is contended that the width of 12 mts has been provided

all around the building as seen from the sanction plan

which is in conformity with the NOC that requires 12

mts on all four sides. Out of the 12 mts, only 6 mts is

required to be maintained as fire way which is available

on ground. Further, clause 10.2.1 of Building Code is

referred to point out that 50% of the open spaces

reserved around the building can be allowed to be

utilised for parking or loading or unloading spaces

provided a minimum distance of 3.6 mts around the

building is kept free from any parking, loading or

unloading spaces. Hence, it is contended that the

requirements have been satisfied. That apart clause 8.1

of the Zoning of Land Use and Regulations is also

referred to indicate that the requirement is only to leave

a minimum of 6 mts free of parking area in the case of

buildings which are ground plus four or more, if parking

is provided in the set back area.Insofar as the

residential building it is contended that for the height

34

between 24 mts to 27 mts, the set back area is 9 mts as

per bye-law 9.2 and as such would satisfy the

requirement.

31. In the backdrop of the above noticed

contentions, a perusal of the NOC would indicate that

the set back stated therein on all sides is 12 mts.

Further, the condition relating to open space would

provide that there should not be any structure and

projections up to the height of 5 mts and that it shall be

free from any construction or utilization like garden,

landscaping etc. The perusal of the plan at Annexure-F

would indicate that the set back of 12 mts has been

provided, out of which 6 mts has been marked as fire

drive way. In the front portion and towards one side, an

indication of the parking area is shown. Therefore, to

the extent of providing the setback of 12 mts, it is

depicted in the sanction plan and it is for the

respondents No.1 and 2 to ensure that the construction

is in accordance with the plan and the provision made

35

in the plan is available during and after the

construction is made.

32. Insofar as the indication of the parking area,

clause 10.2.1 of the Building Code would provide that

50% of the open spaces required around the building

may be allowed to be utlised for parking or loading or

unloading spaces provided a minimum distance of 3.6

mts around the building is kept free from any parking

etc. The provision contained in clause 8.1(b)(ii) of the

Zoning of Land Use and Regulations would indicate that

if parking is provided in the set back area, a minimum

of 6.0 mts in the case of buildings which has Ground

plus four or more floors is to be left. If both these

provisions are kept in view, in the instant case, though

parking is shown in the set back area, the same is

located beyond the minimum of 6 mts which is to be left

from the building as fire way. Since the NOC specifies

that it shall be kept free of construction and should not

be utilized for garden, landscaping etc., it should be

ensured by the respondents that no covered parking

36

with structure is put up or any utilization of a

permanent nature so as to prevent usage of the said

space in the case of emergency is made. Hence, to the

said extent, at this juncture, there is no violation but,

the respondent would have to ensure that it is retained

as an open parking space.

33. Insofar as the grievance that presently only 9

mts open space is available in front of the residential

complex, the indication in the communication dated

15.03.2012 is that such width is available now. In that

regard, the learned counsel for the respondent has

referred to the photographs to indicate that it has only

been barricaded for the purpose of construction as

shown from Annexures-R8 to R12 and that the required

width would be available once the same is removed after

the construction. Though it is contended that the

khatha has been bifurcated, the ground reality of the

existence of the nature of the building without

bifurcating the same by a permanent wall will also

determine the means of access and as such in that

37

regard also it is for the respondents to monitor the same

and ensure the required width between the two

buildings as the construction progresses and attains

completion and the occupancy is to be granted for the

front portion after ascertaining all compliances.

34. For the aforesaid reasons, I pass the

following:

ORDER

i) Though I see no reason to quash the

impugned NOC and the sanction plan,

the third respondent is directed to

reconsider the compliance regarding

means of access by re-visiting

item-10(B)(1) of the NOC dated

23.01.2009 by recording satisfaction

with regard to width of the abutting

road by adopting the method for

determination as discussed and

indicated in paragraphs 24 to 27 of

this order.

38

ii) On such determination, if the

requirement is satisfied, the NOC dated

23.01.2009 granted shall be reaffirmed

or else necessary reasoned order be

passed in that regard.

iii) The said exercise shall be completed by

the third respondent within two weeks

from the date of receipt of a copy of

this order.

iv) Until the said exercise is completed by

the third respondent, the respondents

No. 4 to 6 shall not proceed with the

construction.

v) If the NOC is re-affirmed by the third

respondent, the respondents No. 1 and

2 shall thereafter ensure that the

construction is proceeded only in

accordance with the requirements of

the NOC and sanction plan.

vi) The petitions are disposed of with the

above directions.

39

vii) Since the petitions were heard with the

consent of the learned counsel for the

parties, I.A.No.1/2013 also stands

disposed.

viii) Parties to bear their own costs.

Sd/- JUDGE

akc/bms