Hyderabad High Court · 2025

Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to stay of all further proceedings including arrest of the petitioners in connection with the C.C. No. 1522 ot 2019 in the XIV Metropolitan Magistrate, (Now the Honourahle Prl.Junior Civil Judge-cum Xl Addl. Metropolitan Magistrate, R.R. Dist, Rajendranagar in with Crime in FIR No. 1336 of 2016 of Rajendranagar Police Station, Cyberabad. R.R. Dist., pending disposal of the above criminal petition. This Petition coming on for hearing, upon perusing the Memorandum of Grounds of Criminal Petition and upon hearing the arguments of Sri p. Manohar (Party-in-Person), for the Petitioner and thJ sri. Jithender Rao veeramalla, Additional Public Prosecutor on behalf of the Respondent No.1 . The Court made the following ORDER: THE HONOURABLE SRI JUSTICE N.TUKARAMJI CRIMINAL PETITIO N No. 6267 OF 2024 ORDER This Criminal Petition is filed under Section 482 of the Code of criminal Procedure, 1973 (hereinafter 'crpc'), seeking quashment of the proceedings against the petitioner in C.C. No. 1s22 of 2019 on the file of the learned XIV Additional Metropolitan Magistrate (now Principal Junior civil Judge-cum-Xl Additional Metropolitan Magistrate, Ranga Reddy District at Rajendranagar

2. The petitioner is anayed as accused No.1 in the aforesaid Calendar Case facing accusations for the offences punishable under Sections 447, 427 of the lndian Penal Code, 1860 (hereinafter'tpC').

3. I have heard Mr. P.Manohar, petitioner/party-in-person and Mr.Jithender Rao Veeramalla, learned Additional Public prosecutor, representing respondent No. 1 -State.

4. The brief facts of the case are that on 20.12.2016, respondent No. 2 lodged a police complaint stating that he is the builder of 'KKR Golden Enclave,' situated at Kantha Reddy Nagar, Hyderguda. The project comprises 60 flats, 5 single rooms, and associated parking areas. Out of these, 54 flats and 35 parking slots had already been sold to third parties. On 19.12.2016, during his visit to the apartment 2 NTRJ CrlP.No. 6267 0J2024 complex, the complainant noticed that a brick wall had been constructed near the watchman's room, and three parking slots allotted to him had been encroached upon by way of unauthorized construction of rooms. Alleging illegal trespass and construction by the petitioner and others, he sought appropriate legal action.

5. The petitioner, appearing as party-in-person, contends that the de facto complainant is admittedly the builder. However, once the propefi was sold, an occupancy certificate was issued, and a residents' society was formed, the entire property including stilt parking and common areas are vested in the society and the flat owners collectively. Accordingly, the builder retained no independent rights over the stilt parking area. Thus, the complaint alleging trespass is unsustainable, as the builder cannot claim ownership over such areas' The petitioner further asserts that, as per the complainant's own admission, by.2009, 54 flats and 38 parking slots (out of 41) had already been sold, leaving no residual rights with the builder over common amenities, including stilt space. Even otherwise, the petitioner submits that he is merely a legal advisor and that there is no material evidence to show that he personally encroached upon the property or constructed the alleged brick wall. Therefore, proceedings initiated ggainst him are untenable. 3 i\"itu Cr/.P.No. 6267 ol'2024 Additionally, the petitioner argues that the inordinate delay of 2y2 years in serving notice in violation of the principles of fairness laid down by the Hon'ble Supreme Court in Arnesh Kumar v. Sfafe of Bihar l(2014) B SCC 2731. He also relies on the decision of a Co-ordinate Bench of this Court in Crl.P. No. 6656 of 2023, where proceedings against similarly placed accused were quashed. Furthermore, he cites Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. [2010 (9) SCC 536], to emphasize that stilt and open parking areas are part of the common amenities, which a builder cannot retain or sell after the formation of a housing society

6. On the other hand, the learned Additional Public Prosecutor submits that, according to the complaint, the petitioner and others had encroached upon certain parking slots and constructed unauthorized rooms. The de facto complainant, in his statement, reiterated these allegations, and other witnesses have also supported his version. Therefore, the determination of these issues involves questions of fact that can onty be adjudicated upon during trial. On that basis, the learned Prosecutor prayed for dismissal of the petition.

7. I have perused the materials on record

8. The specific allegation against the petitioner is that, along with others, he trespassed into a portion of the parking area, occupied the -'tu rrra\rJ CrlP.No.6267 of 2024 a\ same, and constructed rooms therein. lt is not in dispute that the builder had already sold 54 flats and 35 out of 41 parking slots, and that a residents' society had been formed. The crucial legal question, therefore, is whether stilt parking spaces form part of the ,common areas and facilities.'

9. This issue has been conclusively addressed by the Hon,ble supreme court in Nahalchand Laloochand pvt. Ltd. v. panchati co-operative Housing society Ltd.l2o1o (9) scc 5361. tn paragraph 60 of the said judgment, interpreting the provisions of the Maharashtra ownership Flats (Regulation of the promotion of construction, sale, Management and rransfer) Act, 1963 (MoFA), the court held that stilt parking spaces constitute part of the common areas. The Court further observed that the promoter has no legal right to sell any portion of a building which is not a 'flat,' and that the entire land and building must be conveyed to the society or association of flat purchasers. The only right that remains with the promoter is .to dispose of unsold flats. Accordingly, the promoter cannot claim ownership over stilt parking spaces, as they are neither flats nor appurtenant to any particular ftat.

10. ln light of this settled position, the complaint and the statement of the de facto comptainant before the police do not explain how, as a builder, he could assert any independent right over the disputed parking \ \ 5 r\TIiJ {.r1.P.No. /t267 oJ. 2021 area. Furthermore, the evidence collected by the prosecution does not implicate the petitioner in the alleged acts of trespass or construction' The witness statements, on closer scrutiny, merely indicate that 'enquiries revealed' the petitioner's involvement, which amounts to hearsay. There is no pima facle material demonstrating that the I petitioner personally participated in the encroachment or construction of the walls and rooms in question. Even if the prosecution's material is accepted in its entirety, the possibility of securing a conviction under judicial scrutiny appears highly implausible. 11 . These circumstances fall squarely within the parameters laid down by the Hon'ble Supreme Court in State of Haryana v- Ch- Bhaian Lal 11992 AIR 6041, which enumerates categories of cases where criminal proceedings may be quashed to prevent abuse of process of law. For the aforesaid reasons, this Court is of the considered opinion that, in the absence of legally sustainable material against the petitioner, allowing the proceedings to continue would amount to an abuse of the Process of law.

12. Consequently, the Criminal Proceedings in C'C' No' 1522 of 2019 on the file of the learned Principal Junior civil Judge-cum-Xl Additional Metropolitan Magistrate at Rajendranagar, against the petitioner are liable to be and are accordingly quashed' 6 NITR/ Cr/.P.N0.6267 of 2024 o

13. Resultantly, the Criminal Petition is allowed. Pending miscellaneous applications, if any, shall stand closed. Sd/. S. MALLIKARJUNA RAO ASSISTANT REGISTRAR a /,TRUE COPY" SECTION OFFICER To,

1. Principal Junior Civil judge-cum-Xl Additional Metropolitan Magistrate Rajend ra nagar, HYderabad. .2. The Vlll Metropolitan Magistrate Cyberabad at Rajendranagar. 3. The Station House Officer, Police Station Rajendranagar, Cyberabad District. 4. One CC to Sri. P. Manohar (Party-in-Person) [OPUC]- 5. Two CCs to PUBLIC PROSECUTOR, High Court for the State of Telangana at Hyderabad [OUT].

6. Two CD Copies TTS/psl % ,l j%- \ \ I I I HE Sl,.l ( 3 lEJAN?026 ,-1.r,'.:\h. HIGH COURT DATED: 2910812025 ORDER GRLP.No.6267 ot 2024 CRTMINAL PETITION IS ALLOWED I \,hC \&!