Kerala High Court Dismisses PIL Challenging Rule Permitting Toddy Shops In Busy Residential Areas

The Kerala High Court has dismissed a Public Interest Litigation which challenged the Constitutional Validity of Rule 7(2) of Kerala Abkari Shops Disposal Rules, 2002, to the extent it permits running of toddy shops in busy residential areas.

T. Fousiya and two others, residents of Kannur District, had approached the High Court contending that the Rule 7(2) is  Article 19 (1)(d) & (e) [to move freely throughout the territory of India; to reside and settle in any part of the territory of India] and Article 21 of the Constitution of India. They also sought a direction to recall the sanction granted for shifting toddy shop in their locality. 

The petitioners have not made out a case to declare rule 7(2) of Kerala Abkari Shops Disposal Rules 2002 as ultravires of Constitution of India, the bench comprising the Chief Justice S. Manikumar and Justice Shaji P. Chaly said while dismissing the plea. 

As per Rule 7(2) of the 2002 Rules, no toddy shops shall be located within 400 metres and no FL-1 Shops shall be located within 200 metres from an educational institution, temple, church, mosque, burial ground and Scheduled Caste/ Scheduled Tribe colonies. In calculating the distance, the basis will be the shortest pathway/lane/street/road generally used by the public and the same shall be measured from gate to gate. As per the proviso to sub-rule (2) of Rule 7, if any educational institution, temple, church, mosque, burial ground or Scheduled Caste/Scheduled Tribe colonies come into existence subsequent to the grant of licence, it shall not disentitle such shops to continue. 

Single Bench Judgment On Toddy Shops In Residential Area

In a judgment delivered in February last year [Vilasini vs. State of Kerala], a single bench of the High Court had observed that no toddy shop shall be located in a residential area infringing the right of privacy of the individual to have respect for his private and family life, his own and his correspondence. Justice A. Muhamed Mustaque had directed the state not to grant or renew licence to toddy shops in a residential area without assessing privacy rights impact.  The judge had issued following directions:

1. No toddy shop shall be located in a residential area infringing the right of privacy of the individual to have respect for his private and family life, his home and his correspondence as referred in Article 8 of European Convention on Human Rights. Threshold severity test assessment has to be followed for assessing the breach of privacy right.

2. Threshold severity test refers to the minimum level of severity of the action complained. This has to be referred to the proximity of the toddy shops with a residential building or buildings, and by adverting to such other factors which would deny the individual the right to live with dignity in the residential building. The assessment must also refer to the denial of amenities like, noise, emissions, odours and any other forms of interference for the quite enjoyment of one's home that he would be entitled to, on account of such location of toddy shops.
3. The assessment test also implies a negative test to assess the surroundings. This test postulates an outcome in the absence of location of toddy shop in a residential area, what could have been the amenities one would be able to enjoy. If this negative test brings an affirmative result, then it has to be assumed that the action would affect the privacy right of the individual on locating toddy shop in the neighbourhood. An affirmative result must indicate that the individual is able to lead a normal life with the amenities that would be otherwise available to him. If the answer is negative, it has to be assumed that no privacy right is affected.
4. The test need not be based on any empirical data of a particular area. Even if one individual is affected, that would be sufficient to hold a breach of privacy right. However, that test must be on indicators that would subserve group interest or collective interest of the social structure.

A writ appeal filed challenging this judgment is still pending.

Case:  T. FOUSIYA vs STATE OF KERALA [WP(C).No.5277 OF 2014(S)]

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