The High Court of Kerala in the case of S.K.Pavithran and Ors. v/s Laisy Santhosh and Ors. Ruled that Existence of a toddy shop in a residential area cannot be an infringement of the right to privacy of Inhabitants of the locality.
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 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 directed other respondents 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.
The issue raised at the proceedings is 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.
The respondents contended that the trade carried on by respondents, that too with the licence of the competent authority under the Rules framed under the Abkari Act being a lawful activity, it cannot be said that the same would infringe the right to privacy of any one, especially when they have a constitutional right to carry on the said activity in the light of the licence obtained by them.
The petitioner supported the impugned judgment pointing out that during 1994-95 when the toddy shop was established in the present location and premises, there was hardly anyone residing in its vicinity, but in course of time, the location has become a thickly populated residential area and it is in the aforesaid background that complaints happened to be lodged against the location of the toddy shop.
The division bench of Justice P.B. Suresh Kumar and Justice C.S. Sudha noted that 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. In other words, a case of privacy protected under Article 21 of the Constitution is not made out in the writ petitions.