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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