The main legal point established is that decrees, if declaratory in nature and not involving any land other than the suit land, may not be compulsorily registrable under Section 17(2)(vi) of the Registration Act, 1908.

ORDER :

1. Heard finally, with the consent of the parties.

2. This writ petition has been filed by the petitioner under Article 226 of the Constitution of India assailing the order dated 03.10.2023, passed by the M.P. Real Estate Regulatory Authority, Bhopal whereby the petitioner’s application for registration of project has been rejected on certain grounds including that the petitioner has not registered the decrees dated 23.11.1994, which is in violation of Section 4(2)(l)(m) of the Real Estate Regulation and Development Act, 2016 (in short “the Act of 2016”).

3. Shri Amit Agrawal, learned Senior counsel for the petitioner has drawn the attention of this Court to both the decrees dated 23.11.1994, which have been passed in favour of the owners of the land, namely, Hanif and Anwar respectively. Shri Agrawal has submitted that on the basis of the aforesaid decrees, which have already attained the finality, the owners of the land have entered into a development agreement with the petitioner-company vide development agreement dated 02.09.2021 (Annexure P/11). It is further submitted that the aforesaid agreement is also registered with stamp duty duly paid. Senior counsel has submitted that as per Section 17(2)(vi) of the Registration Act, 1908, a decree in itself is not compulsorily registrable, except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceedings. It is submitted that the decrees were not passed in a compromise and also does not involve any other immovable property other than the subject matter of the suit. Thus, it is submitted that the petitioner was not required to get the aforesaid decrees registered, even as per Section 17(1)(e), the agreement between the parties, which can be termed to be a non-testamentary instruments transferring or assigning the decree, is already registered for which a stamp duty of Rs. 38,15,900/- and registration fees of Rs. 12,21,088/- have already been paid. Thus, it is submitted that the impugned order, so far as it relates to the condition imposed by the respondent (Real Estate Regulatory Authority) RERA to get the decrees registered, be set aside.

4. Senior counsel for the petitioner has relied upon certain decisions rendered by the Supreme Court in the case of Gurcharan Singh and Others vs. Angrez Kaur and Another, (2020) 10 SCC 250 and Khushi Ram and Others vs. Nawal Singh and Others, 2021 SCC Online SC 128.

5. Counsel appearing for the respondent has opposed the prayer and it is submitted that no case for interference is made out. In support of his submission, counsel for the respondent has also relied upon a decision rendered by the Supreme Court in the case of Bhoop Singh vs. Ram Singh Major and Others, 1995 (5) SCC 709. Relevant Paras 16, 17 and 18 of the same read as under:

“16. We have to view the reach of clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of the value of Rs 100 or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

17. It would, therefore, be the duty of the court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100 or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily