Location of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants therein only if the functioning of the toddy shop is causing nuisance or breach of public peace or morality.

Headnote:
MAIN LEGAL POINTLocation of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants therein only if the functioning of the toddy shop is causing nuisance or breach of public peace or morality.CATEGORYConstitutional LawSUB-CATEGORYRight to Privacy
Fact of the Case:

The petitioner is a person residing at Vaikom in a residential property owned by her. A toddy shop under the Vaikom Excise Range is located in the property adjacent to the residential property of the petitioner. Respondents 4 to 6 are the licencees of the said toddy shop. According to the petitioner, since the functioning of the toddy shop has been causing nuisance to her and family, she preferred a complaint to the first respondent, the Excise Commissioner, seeking orders to change its location. Though it was found that the toddy shop has been functioning in the same location and premises right from 1994-95 in accordance with the Rules framed under the Abkari Act and that the petitioner is a person who started residing in the adjacent property after the establishment of the toddy shop, the first respondent, as per Ext.P7 order, directed respondents 4 to 6 to relocate the toddy shop, invoking Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002 (the Rules), holding that its functioning is causing inconvenience to the petitioner.
Finding of the Court:

1. The learned Single Judge has erred in holding that the existence of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants of the locality, for without a finding that the statutory provision which permits establishment of toddy shops in residential areas is unconstitutional in any manner inasmuch as it does not satisfy the requirement of “procedure established by law” as contained in Article 21 of the Constitution, the learned Single Judge has erred in holding that the existence of a toddy shop in a residential area would be derogation of the right to privacy of the people in the locality.2. The learned Single Judge has also erred in holding that the existence of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants of the locality, for the general concerns expressed by the amicus curiae in the writ petitions are all taken care of in the Rules inasmuch as the Rules empowers the authorities concerned to relocate a toddy shop in the interest of public peace or morality or on grounds of expediency.3. The learned Single Judge has also erred in holding that the existence of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants of the locality, for the conduct of the petitioner in purchasing a land lying adjacent to a toddy shop for construction of a residential building, the conduct of the petitioner in taking an informed decision after a considerable time to construct a building therein for her residence, the conduct of the petitioner in residing in that building a few years thereafter while the toddy shop was being run uninterruptedly in the adjacent land do not lead to an inference that the petitioner, by her conduct, has exhibited an actual expectation of the alleged privacy and sought to preserve the same.
Issues: 1. Whether the location of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants therein?2. Whether the facts of the writ petitions from which these writ appeals arise disclose a case of privacy enforceable in terms of Article 21 of the Constitution?3. Whether Ext.P7 order of the first respondent and Ext.P12 order of the Government are sustainable?
Ratio Decidendi: 1. The right to privacy protected under Article 21 of the Constitution is not an absolute one, but only a right available to individual subject to the rights of others to lead orderly lives, in the absence of a finding in the impugned judgment that the statutory provision which permits establishment of toddy shops in residential areas is unconstitutional in any manner inasmuch as it does not satisfy the requirement of “procedure established by law” as contained in Article 21 of the Constitution, the learned Single Judge has erred in holding that the existence of a toddy shop in a residential area would be derogation of the right to privacy of the people in the locality.2. The general concerns expressed by the amicus curiae in the writ petitions are all taken care of in the Rules inasmuch as the Rules empowers the authorities concerned to relocate a toddy shop in the interest of public peace or morality or on grounds of expediency.3. The conduct of the petitioner in purchasing a land lying adjacent to a toddy shop for construction of a residential building, the conduct of the petitioner in taking an informed decision after a considerable time to construct a building therein for her residence, the conduct of the petitioner in residing in that building a few years thereafter while the toddy shop was being run uninterruptedly in the adjacent land do not lead to an inference that the petitioner, by her conduct, has exhibited an actual expectation of the alleged privacy and sought to preserve the same.
Final Decision: The impugned judgment is set aside and the writ petitions, viz, W.P.(C) Nos.29704 of 2015 and 2213 of 2018 are dismissed. It is, however, made clear that this judgment will not stand in the way of the petitioner moving the first respondent for follow up action for enforcement of Ext.P7 order.

JUDGMENT

P.B.Suresh Kumar, J.

These appeals are directed against the common judgment dated 14.02.2020 in W.P.(C) Nos.29704 of 2015 and 2213 of 2018. The appellants in the appeals are respondents 4 to 6 in W.P.(C) No.29704 of 2015 and petitioners in W.P.(C) No.2213 of 2018. Parties and documents are referred to in this judgment for convenience, as they appear in W.P.(C) No.29704 of 2015.

2. The petitioner is a person residing at Vaikom in a residential property owned by her. A toddy shop under the Vaikom Excise Range is located in the property adjacent to the residential property of the petitioner. Respondents 4 to 6 are the licencees of the said toddy shop. According to the petitioner, since the functioning of the toddy shop has been causing nuisance to her and family, she preferred a complaint to the first respondent, the Excise Commissioner, seeking orders to change its location. Though it was found that the toddy shop has been functioning in the same location and premises right from 1994-95 in accordance with the Rules framed under the Abkari Act and that the petitioner is a person who started residing in the adjacent property after the establishment of the toddy shop, the first respondent, as per Ext.P7 order, directed respondents 4 to 6 to relocate the toddy shop, invoking Rule 7(3) of the Kerala Abkari Shops Disposal Rules, 2002 (the Rules), holding that its functioning is causing inconvenience to the petitioner. Respondents 4 to 6 challenged Ext.P7 order in revision before the Government mainly on the ground that a suitable alternative place is not available in the locality within the permissible limits and in terms of Ext.P12 order, the Government modified Ext.P7 order permitting respondents 4 to 6 to continue the toddy shop at the same location and premises until they get a suitable alternative place for relocation. W.P.(C) No.29704 of 2015 was one filed challenging Ext.P12 order to the extent it permits respondents 4 to 6 to continue the toddy shop at its present location and premises until they get a suitable alternative place for relocating the same, and W.P.(C) No.2213 of 2018 was filed by respondents 4 to 6 challenging Exts.P7 and P12 orders.

3. The writ petitions were heard along with a few other similar writ petitions challenging the location of toddy shops referred to therein. The learned Single Judge took the view that the underlying concern in all the writ petitions is the infringement of right to privacy of the petitioners and held that location of a toddy shop in a residential area would be in derogation of the right of the individuals to have respect for their private and family life. The learned Single Judge thereafter laid down the criteria for deciding the question as to whether location of a particular shop would infringe the privacy rights of individual/individuals who were raising objections/complaints against its location and then decided the writ petitions applying the said criteria, having regard to the facts involved. 4. As far as the writ petitions from which these appeals arise, having found that the toddy shop is located in the property adjacent to the residential property of the petitioner and having taken note of the fact that the first respondent himself has found in Ext.P7 order that the functioning of the toddy shop is causing inconvenience to the petitioner, the learned Single Judge held that the location of the toddy shop is infringing the privacy rights of the petitioner. One of the contentions raised by respondents 4 to 6 in the writ petition was that the residential property of the petitioner was one acquired by her while the toddy shop was being run in the adjacent property and she is therefore estopped from raising any objection against the location of the toddy shop. As regards the said contention, the learned Single Judge held, placing reliance on the decision of the Apex Court in Olga Tellis and others v. Bombay Municipal Corporation and others, AIR

1986 SC 180, that the right t

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2022 Supreme(Online)(KER) 19257

Location of a toddy shop in a residential area would be in derogation of the right to privacy of the inhabitants therein only if the functioning of the toddy shop is causing nuisance or breach of public peace or morality.

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