Point of Law: Swachha Bharat Mission - Claim entitlement to land - When the Plaintiff does not have title to C.T.S. merely on basis of lay out, it cannot claim entitlement to land where old toilet block existed which does not belong to the Plaintiff. Old toilet block and the land beneath it never belonged to Plaintiff Federation and was on an open portion/space of C.T.S. with a definitive purpose and what has been done now is to redevelop and reconstruct original dilapidated toilet block at same place. Therefore Plaintiff cannot claim entitlement to land beneath original toilet block or area of original toilet block or structure of original toilet block.

JUDGMENT:

Heard Mr. N.V. Walawalkar, learned Senior Advocate for the Appellant - Original Defendant No. 1 and Mr. Sachin Kadam for Respondent No. 1 - Plaintiff.

2. This Appeal from Order is filed to challenge the order dated 09.03.2021 passed by City Civil Court, Dindoshi, Mumbai in Notice of Motion No. 5 of 2021 in S.C. Suit No. 7 of 2021, whereby the trial Court has made the said Notice of Motion absolute in terms of prayer clauses (a), (b) and (c).

The prayer clauses (a), (b) and (c) of the Notice of Motion reads thus:-

"(a) That pending hearing and final disposal of the above suit this Hon'ble Court be pleased to direct the Defendant No. 1 to stay its hands and remove the partly carried out construction activity at the suit plot of land bearing C.T.S. No. 418 being red portion shown in lay out plan;

(b) That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to direct the Defendant No. 3 to implement the Hon'ble Court's order and restrain any person from carrying out any construction on the suit plot of land bearing C.T.S. No. 418 as shown in red colour in the lay out plan bearing Exhibit "E" hereto and also to maintain law and order at site;

(c) That pending hearing and final disposal of the above suit, this Hon'ble Court be pleased to grant temporary order and injunction restraining the Defendant No. 1, its officers, servants, agents and person or persons claiming through or under them from carrying out any construction activities of public toilet in the suit premises shown in red colour in the lay out plan on plot bearing C.T.S. No. 418 being Exhibit "E" hereto."

3. By consent of the parties, the Appeal from Order is taken up for hearing. For the sake of convenience, we shall refer to the parties as they were referred to before the trial Court i.e Appellant will be referred to as Defendant No. 1, Respondent No. 1 herein will be referred to as Plaintiff and Respondent Nos. 2 & 3 will be referred to as Defendant No. 2 & Defendant No. 3 respectively.

4. Briefly stated, Plaintiff is a Federation of several Co-op. housing societies in Nirmal Nagar Area, Bandra (E), Mumbai. Suit bearing L.C. Suit No. 7 of 2021 has been filed by the Plaintiff for the following reliefs:-

"(a) That this Hon'ble Court be pleased to declare that the work being carried out at the said site more particularly described in lay out plan in red ink on the plot of land bearing C.T.S. No. 418 of construction of toilet by the Defendant No. 1 is illegal, bad in law, null and void and is without proper permission of Competent Authority or of the Plaintiff;

(b) That this Hon'ble Court be pleased to direct the Defendant No. 1 to stay its hands and remove the partly carried out construction activity at the suit plot of land bearing C.T.S. No. 418 being red portion shown in the lay out plan;

(c) That this Hon'ble Court be pleased to direct the Defendant No. 3 to implement the Hon'ble Court's order and restrain any person from carrying out any construction on the suit plot of land bearing C.T.S. No. 418 as shown in red colour in the lay out plan being Exhibit "E" hereto and also to maintain law and order at site;

(d) That this Hon'ble Court be pleased to grant permanent order and injunction restraining the Defendant No. 1, its officers, servants, agents and person or persons claiming through or under them from carrying out any construction activities of public toilet in the suit premises shown in red colour in the lay out plan on plot bearing C.T.S. No. 418 being Exhibit "E" hereto."

5. Mr. Walawalkar, learned Senior Advocate appearing for the Appellant/Defendant No. 1 - Corporation has assailed the impugned order dated 09.03.2021 and contended that the Corporation was redeveloping and reconstructing an already existing dilapidated toilet block standing on an open portion/space in C.T.S. No. 418. This is the factual position and the Plai