When a builder in Bengaluru decided to put up a commercial block next to an existing residential apartment (Rajsri Apartments), the apartment owners association raised concerns. The Rajsri Apartments Owners Association argued that the builder was breaching fire safety norms, especially minimum setback (open space) requirements and ultimately this could block the new aerial fire engines procured by the Bengaluru fire department and impede rescue operations during emergencies.
A point to note that the original sanction plan which had received the Bengaluru Fire Department NOC was solely for a residential building. However, the builder later wanted to modify the sanctioned plan and classified the development as mixed use, consisting of both residential and commercial space. The residential part includes Block B.
The Karnataka High Court ordered the Karnataka State Fire & Emergency Services to go to the spot and conduct an inspection and give its report.
Acting on the court’s order, the Bengaluru Fire Department examined whether the movement of fire fighting vehicles is possible on the setback area of the commercial building built in front of the Rajashree Apartments.
The Karnataka State Fire & Emergency Services said in its report that according to the revised NOC requirements, the height of the Building is 36.9 meters, for which the required setback is minimum 12 meters all around the building, whereas the builder has claimed relaxation in setbacks and allowed setbacks of a minimum 8 meters on all sides.
The Karnataka State Fire & Emergency Services said that they 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 these vehicles is a minimum of 8 meters.
The fire department said that since the required Setback/Driveway of 8 meters is not available around this building, it will be difficult to conduct rescue operations during an emergency as the easy movement of Aerial ladder Platform will not be possible.
Allowed Setbacks (open space) on all around the building;-
|
Direction |
As per NOC |
At the time of inspection (present Setback) |
Shortfall of Setback area |
| Front (East): | Minimum 8 meters | Minimum 7.65 meters | 0.35 meters |
| Rear (West): | Minimum 8 meters | Minimum 6.3 meters | 1.7 meters |
| Side (North) | Minimum 8.08 meters | Minimum 7.6 meters | 0.4 meters |
| Side (South) | Minimum 8.7 meters | Minimum 8 meters | - |
The Karnataka Fire Safety Department also gave a diagram of the setback spaces:
Source: HC judgement
The Karnataka High Court also sought the Bruhat Bengaluru Mahanagara Palike’s (BBMP) opinion about the Fire Department's report. In response, BBMP has filed its report, where it is clearly stated that towards south, the Setback area is below 8 meters.
In light of these two reports, a single bench of the Karnataka High Court ordered the demolition of the construction made on the driveway space adjacent to the residential block. Feeling aggrieved, the builder filed an appeal before a double bench of the Karnataka High Court.
Advocate Madhukar Deshpande represented the apartment owners in Karnataka High Court.
Justice D K Singh and Justice T.M. Nadaf heard this case and passed their judgement on April 7, 2026 in the apartment owners’ favour.
Why the apartment owners' association won the case?
Advocate Rajeev K Jha, Founder & Director, Sarve Permits & Legal Advisory said to
ET Wealth Onlinethat the Apartment Owners' Association won because they successfully shifted the burden of proof from a mere "zonal regulation" dispute to a "fundamental safety" issue. Here's why:
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Irrefutable Evidence: The High Court directed an on-site inspection by the Karnataka State Fire & Emergency Services. The department's report (dated July 12, 2024) confirmed that the reduced setback made it impossible for Aerial Ladder Platforms to conduct rescue operations.
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Precedence of Safety: The Court ruled that fire regulations operate in a "specialized field" and must be given precedence over general planning legislation.
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Rejection of Developer's Ruse: The Court dismissed the developer's claim that substantial money had been spent on the construction, stating that illegal construction cannot be protected by the "ruse of passage of time" or the cost incurred by the builder.
According to Jha, the builder relied on TDR (Transferable Development Rights) to justify reduced setbacks. However, based on the building height, setback norms require 12 meters on all sides of the building. The builder used the TDR exemption policy and applied reduced norms of 8 meters, and even then, blatantly violated the 8-meter setback, going below the minimum required by building by-laws without any fear of the law.
Karnataka High Court order and discussion
The Karnataka High Court said that high rise buildings with pocket apartments, regardless of the luxury they provide, cannot be permitted to put the general public at risk, particularly the residents of the building and others in the neighbouring areas.
The high court pointed out that this is based on the principle that private interests take a backseat to public interest and public good. The local authorities actions are deemed justified because they are reasonably necessary for public health, safety and general welfare of the residents of the apartment as well as nearby areas.
Thus on this ground, the high court rejected the builder’s appeal and said that fire safety violation during the spot inspection is a detrimental factor in this case.
The Karnataka High Court said that the fire department report reveals the true state of the building, indicating that it would be very difficult for the Fire Department to control and handle any unexpected emergencies, as there is no adequate clear passage for heavy vehicles equipped with aerial ladders used in high-rise buildings during emergencies.
However, the builder argued before the Karnataka High Court that the Karnataka Fire Force (Amendment) Act, 2023 should not be applied retrospectively and that there were no statutory rules mandating more than a 8 metre setback.
The high court said that the builder in this case was well aware of the permissible construction rules; but for reasons best known to him, did not leave the setback area and this is clear from the fire department’s report.
The high court also said that construction by 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 should be assumed to be deliberate and done with the intention to earn profit and deserve to be dealt with sternly, so as to act as a deterrent in future.
The Supreme Court in catena of cases, with respect to deviation of plan and short of setbacks, held that stern action must be taken against the builders who violate the building plan, especially while leaving the setbacks for free passage of vehicles and other emergency movements of vehicles like fire, police, ambulance etc.
The Karnataka High Court said that the Fire Department’s report (July 12, 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.
Order: The Karnataka High Court said that in the larger interest of the residents of this building as well as in the neighbouring vicinity in view of the categorical report by the Fire Department, they are not inclined to accept the submissions made by the builder. Thus the court rejected the builder’s appeal.
