Edcon Real Estate Developers Rep. By Its Partner vs. The Goa State Real Estate Regulatory Authority Thr. Its Chairperson

Held

The Court held that the Goa Real Estate Regulatory Authority (RERA) has the jurisdiction to examine whether a Development Agreement attracts compulsory registration under Section 17 of the Registration Act, 1908, for the limited purpose of processing a project registration application under Sections 3 and 4 of the RERA Act. This examination is incidental and ancillary to its statutory function and does not amount to adjudicating title. The Court found that Section 13 of the RERA Act, which governs agreements for sale with allottees, does not restrict the Authority's power to examine the Development Agreement as the source of the promoter's authority. The Court held that the Development Agreement dated 01.02.2020, upon a harmonious construction of its clauses, creates and declares rights extending beyond a mere executory contract for sale, thus falling within the ambit of Section 17 of the Registration Act. The reference to future built-up structures and the developer's entitlement to a defined share in the completed project, along with corresponding undivided interest in the land, creates identifiable rights in relation to the immovable property, necessitating compulsory registration. The Court found no infirmity in the appellate tribunal's judgment affirming RERA's order. The Appeal was dismissed, but the Appellant was granted liberty to present the Development Agreement for registration and thereafter pursue its application for project registration.

Facts

The Appellant, Edcon Real Estate Developers, entered into a Development Agreement dated 01.02.2020 with landowners for developing a property. The agreement stipulated that 40% of the constructed area would be for landowners, 50% for the developer, and 10% along with reimbursement of expenses for a Confirming Party. Clause 45 stated that possession of the property would remain with the owners, and the developer was granted an irrevocable license to enter for construction. The Appellant applied for project registration with the Goa Real Estate Regulatory Authority (RERA). RERA objected, stating the Development Agreement was not registered. The Appellant contended the agreement did not create any proprietary interest and thus did not require compulsory registration under Section 17 of the Registration Act, 1908. The Appellant had previously filed a writ petition challenging a RERA circular on joint development agreements, which was disposed of with a clarification that the circular applied only to agreements attracting Section 17.

Key Issues

1. Whether the Respondent (Goa RERA Authority) and/or the Tribunal had jurisdiction to consider whether the Development Agreement dated 01.02.2020 between the appellant and the land-owners was required to be registered under the Registration Act, 1908? The Appellant argued that the Authority's role is limited to RERA Act provisions and it cannot adjudicate on registration requirements under the Registration Act. The Respondent argued that examining the agreement's registrability is incidental to its statutory function under Sections 3 and 4 of the RERA Act. 2. Whether Section 13 of the RERA Act restricts consideration to agreements for sale with allottees, and consequently, de hors the said Section, the Respondent and/or the Tribunal could not consider the registration of an agreement for sale between an owner/land-owner and developer/promoter? The Appellant contended Section 13 exclusively governs agreements for sale with allottees. The Respondent argued that the Authority's jurisdiction arises from examining the Development Agreement as the source of the promoter's authority, not from Section 13. 3. Whether the Said Agreement required registration under the Registration Act, in the light of Section 17 and Section 17(2) of the Registration Act and proviso thereof, read with Section 54 of the Transfer of Property Act? The Appellant argued that the agreement merely created contractual rights and did not transfer any interest in immovable property. The Respondent argued that the agreement created rights beyond a mere executory contract for sale, attracting Section 17. 4. Whether in an agreement that related only to the land, reference to future built-up structures, proposed to be constructed therein, which were not themselves the subject matter of the agreement, were to be shared and/or allotted, could not amount to creation of right and/or interest, so as to render the agreement registration under the Registration Act? The Appellant argued that future structures were not the subject matter and thus did not create registrable interest. The Respondent argued that the agreement created identifiable rights in relation to the immovable property.