DR. D.Y.CHANDRACHUD, J.

Rule; by consent returnable forthwith. With the consent of Counsel and at their request the Petition is taken up for hearing and final disposal.

2. The challenge in these proceedings is to a No Objection Certificate dated 13 June 2009 issued by the Mumbai Building Repairs and Reconstruction Board and to an IOD dated 28 January 2010 issued by the Municipal Corporation. The authorities whose action is challenged are impleaded as the First and Second Respondents. The subject matter of the petition is a proposed redevelopment to be carried out by the Seventh and Eights Respondents in respect of land and immovable property situated at Survey No.200 of Tardeo Division. The redevelopment is proposed under DCR 33(7) of the Development Control Regulations for Greater Mumbai.

3. The Petitioner is an occupant of a residential flat in an adjoining building, which is known as Suleman Tower. The building where the Petitioner resides was also redeveloped under DCR 33(7) and the construction is complete. At the time when the building belonging to the Petitioner was redeveloped, the structure situated on C.S.200 comprised of a ground floor and first floor. The building in which a flat is in the occupation of the Petitioner consists of 19 storeys. Under DCR 29, it has been provided that the open space for separation between any building and a single storeyed accessory building need not exceed 1.5 meters. The developer of Suleman Tower sought a condonation of the deficiency in the open space under DCR 64(b) which was granted by the Municipal Commissioner. The Petitioner now seeks to challenge the condonation in the deficiency of open space in relation to the redevelopment which is taking place on the adjoining plot, C.S.200. The deficiency has been condoned by the Municipal Commissioner on 12 January 2010.

4. Under a notification issued by the Urban Development Department on 15 October 2003, the marginal open space required for a building having a height of more than 24 meters, is six meters. A proposal was put up by the Architect of the Seventh and Eighth Respondents for condoning the deficiency in the open space. It is common ground between Counsel appearing on behalf of the Petitioner and the Seventh and Eighth Respondents that the building in which the Petitioner resides (Suleman Tower) is on the eastern side of the plot in which a redevelopment under DCR 33(7) is to be carried out by the Seventh and Eighth Respondents. The Assistant Engineer (Building Proposals), City-II submitted a report in which he noted that the proposal for redevelopment of the Seventh and Eighth Respondents envisaged condoning a deficiency in open space ranging between 6.67% to 100%. The relevant observation of the report is as follows :

“Thus, it can be seen that Architect is unable to provide required open space. The open space deficiency is ranging from 6.67% to 100%.

The Architect contended that open space required cannot be proposed due to planning constraints and the F.S.I. permissible is 3.810. In order to consume such F.S.I. open space deficiency is inevitable.”

The report also notes that in view of the fact that another proposal under DCR 33(7) was allowed by his office (that proposal is the one which pertains to Suleman Tower), the open space between the two buildings will be 2.10 meters, including 1.5 meters open space in respect of the development on the East side.

5. The Municipal Commissioner allowed the proposal and condoned the deficiency in open space on the ground that out of 285.12 sq.mtrs. being the area of the plot, the setback is 135.79 sq.mtrs. and 25 rehabilitation tenements were required to be provided.

6. The grievance of the Petitioner is that as a result of the order which has been passed by the Municipal Commissioner, the deficiency in the open space, which is extremely drastic, would be condoned and there would be virtually no distance at all between the two sets of buildings. Learned Counsel submitt