IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 WP(C).No. 32440 of 2010(D) -------------------------- PETITIONER: ------------------ 1. THANKACHAN, AGED 38, S/O.POULOSE, ACHANDI HOUSE, OKKAL, MATTOR. 2. MADHAVAN NAIR, AGED 74, S/O.PADMANABHAN PILLAI, MANAKKATTU HOUSE, OKKAL, MATTOR. 3. M.P.GOPINATHAN NAIR, AGED 68, S/O.PADMANABHAN PILLAI, MANAKKATTU HOUSE, OKKAL, MATTOR. 4. A.D.CHACKO, S/O.DEVASSY, ACHANDY HOUSE OKKAL, CHELAMATTOM. 5. SALIM, S/O.ABDUL RAHMAN, NEDUGATTKUDI HOUSE, OKKAL, CHELAMATTOM. 6. VEERAVU, S/O.KOCHAHAMMED, NEDUNGATTUKUDI HOUSE, OKKAL, CHELAMATTOM. 7. C.O.VARGEESE, S/O.OUSEPH, CHEPPALA HOUSE, OKKAL, CHELAMATTOM. 8. THOMAS, S/O.DEVASSY, CHEPPALA HOUSE, OKKAL, CHELAMATTOM. 9. GEORGE, S/O.DEVASSY, CHEPPALA HOUSE, OKKAL, CHELAMATTOM. 10. KALIKUTTY, W/O.CHATHAN AYYAPPAN, MUNDAPPILLY HOUSE, OKKAL, CHELAMATTOM. 11. PAUL, S/O.CHACKO, PARAKKANDOM HOUSE, OKKAL, CHELAMATTOM. 12. RAJEEVAN, S/O.SUDHAKARAN, THOPPIL HOUSE, OKKAL, CHELAMATTOM. 13. K.O.JOSEPH, S/O.OUSEPH, KOONATHAN HOUSE, OKKAL CHELAMATTOM. 14. MATHEW, S/O.OUSEPH, MANIKKATHU HOUSE, OKKAL, CHELAMATTOM. 15. ANNAM, W/O.OUSEPH, KOONTHAN HOUSE, OKKAL, CHELAMATTOM. 16. T.S.ASHOKAN, S/O.SREEDHARAN, THOPPIL HOUSE, THANNIPUZHA, OKKAL. 17. SAJEEVAN, S/O.SREEHDARAN, THOPPIL HOUSE, THANNIPUZHA, OKKAL. 18. SANTHOSH KUMAR, S/O.GANGADHARAN, THOPPIL HOUSE, THANNIPUZHA, OKKAL. 19. DEVARAJAN, S/O.KUMARAN THOPPIL HOUSE, THANNIPUZHA, OKKAL. 20. OUSEPH, S/O.OUSEPH, MANIKKATHAN HOUSE, OKKAL, CHELAMATTOM. 21. SHIJO, S/O.VARGEESE, NAMBIYATTUKUDY HOUSE, OKKAL, CHELAMATTOM. 22. SANJO, S/O.VARGEESE, NAMBIYATTUKUDY HOUSE, OKKAL, CHELAMATTOM. 23. MOHANAN, S/O.SUBRAMANIAN, KAVISSERY HOUSE, OKKAL. 24. SUDHAKARAN, S/O.VELAYUDHAN, PULIKKAKUDY HOUSE, PALLARIMANGALAM, OKKAL. 25. VARIJAKSHAN NAIR, S/O.DIVAKARAN PILLAI, PERUMTHOTTATHIL HOUSE, OKKAL. 26. SHIBU K.JOSE, KOONATHAN HOUSE, OKKAL, MATTOOR. 27. SHEEBA BABY, CHIRAKKAL HOUSE, OKKAL, MATTOOR. 28. ROY, KALARIKKAL HOUSE, OKKAL, MATTOOR. 29. M.V.VARGEESE, S/O.VARKEY, MANIKKYATH HOUSE, OKKAL, MATTOOR. 30. PREEMJI, S/O.VASUDEVAN, THOOPIL HOUSE, OKKAL, CHELAMATTOM. 31. M.K.GOPINATHAN, MANEELI HOUSE, OKKAL, CHELAMATTOM. 32. SUBRAMANIYAN, S/O.AYYAPPAN, KIZHAKKANBRATHKUDY, OKKAL, CHELAMATTOM. 33. ALI KUNJU, S/O.IBRAHIM, NEDUNGATTUKUDY HOUSE, OKKAL, CHELAMATTOM. 34. T.D.LAJI, S/O.DATHAN, IRUPPUMKARAYIL PATTATHIL, THRIKODITHANAM. CHANGANASSERY. 35. HARIHARAN, S/O.KESAVAN, MUTHALANGA HOUSE, OKKAL, CHELAMATTOM. 36. SUKUMARI, W/O.PRABHAKARAN, KIZHAKEKUDY, CHELAMATTOM KARA. 37. AYYAPPAN, S/O.NARAYANAN, KIZAKKAPRATHUKODY, T.P.360, OKKAL MATTOOR. 38. PRATHAPAN, S/O.KRISHNAN, T.P.2390, THARAMILLATH, OKKAL, MATTOOR. BY ADV. SRI.N.ANILKUMAR RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM-682021. 2. THE SPECIAL TAHSILDAR (LA), RAILWAYS, PERUMBAVOOR-683542. 3. THE COMMISSIONER OF INCOME TAX (TDS), OFFICE OF THE COMMISSIONER OF INCOME TAX, KOCHI, C.R.BUILDING, I.S.PRESS ROAD, KOCHI, PIN-682018. 4. INCOME TAX OFFICER (TDS), OFFICE OF THE COMMISSIONER OF INCOME TAX, KOCHI, C.R.BUILDING, I.S.PRESS ROAD, KOCHI, PIN -682018. 5. DEPUTY CHIEF ENGINEER, CONSTRUCTION DEPARTMENT, SOUTHERN RAILWAY,ERNAKULAM-682016. R1 BY GOVERNMENT PLEADER, SRI.BEJOY CHANDRAN R2 & R5 BY SRI.N.B.SUNIL NATH, SC (RAILWAYS) R3& R4 BY SRI.JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: VK C.K.ABDUL REHIM, J --------------------------------------- W.P(C) No.32440 of 2010-D ---------------------------------------- Dated this the 22nd day of October, 2010. J U D G M E N T Various extent of land belonging to the petitioners were identified for establishing Angamali-Sabarimala Railway Track. The land were sought to be taken over for the above project under the Fast Track Project Scheme on the basis of negotiated purchase. The District Level Purchasing Committee was constituted for the above purpose and after negotiation execution of sale deed is under contemplation. 2. The issue pertains to payment of value as per the negotiated agreements. The second respondent had intimated the petitioners that such payments will be effected only after deducting 10% amounts towards TDS under Section 194 LA of the Income Tax Act, 1961. The second respondent is adopting such a stand on the basis of Ext.P4 issued by the fourth respondent. It is pointed out that Ext.P4 letter was the subject matter of challenge before this Court in W.P(C) No.10691 of 2010. Ext.P6 is the judgment in that case. Referring to a decision of a Division Bench of this Court in Infopark, Kerala W.P(C) No.32440 of 2010-D 2 V. Asst. Commissioner of Income Tax (2008(4) KLT 782) it was held that in case of conveyance of property on the basis of negotiated sale, as distinct from compulsory acquisition, the provisions contained in Section 194LA will not be applicable. 3. Learned counsel for the petitioner submitted that eventhough the Income Tax Department has taken up Ext.P6 judgment in appeal, the view taken on the basis of above said ruling was upheld by the Division Bench. Ext.P7 is the judgment in W.A.No.1362 of 2010 is passed in this regard. 4. Under the above circumstances, the writ petition is allowed. Respondents 2 and 5 are directed to release compensation payable to the petitioners without deducting any amounts as TDS under the provisions of Section 194LA of the Income Tax Act 1961. Sd/- C.K.ABDUL REHIM JUDGE //True Copy// P.A to Judge ab W.P(C) No.32440 of 2010-D 3