Relocation of JJ Dwellers Beyond 5 km for Strategic/National Security Needs: Article 21 Compliance Through DUSIB Policy-Protocol Safeguards
Case: KHUSHNUMA KHAN & ORS. v. UNION OF INDIA THROUGH ITS SECRETARY MINISTRY OF HOUSING AND URBAN AFFAIRS & ORS.
Citation: 2026 DHC 4145 (Delhi High Court) | Date: 11-05-2026 | Coram: Hon’ble Mr. Justice Purushaindra Kumar Kaurav
1. Introduction
The Delhi High Court decided two connected writ petitions filed by residents of three JJ clusters—Bhai Ram Camp, DID Camp, and Masjid Camp—who challenged the respondents’ action to clear the existing camps and relocate the residents to EWS flats at Savda Ghevra, Delhi.
The lead petition (by Mrs. Khushnuma Khan and others) initially impugned an eviction notice dated 29.10.2025 that required vacation without alternative accommodation. During the proceedings, the State decided to rehabilitate residents at Savda Ghevra and issued notices dated 19.02.2026 and 27.02.2026 requiring the petitioners to obtain allotment letters. The second petition (by Mr. Rakesh Bansal and others) then assailed this relocation decision.
Key issues
- Whether relocating JJ dwellers to Savda Ghevra violates Article 21 (life with dignity, livelihood, shelter, education, health).
- Whether the action is vitiated by non-compliance with DUSIB Policy (Delhi Slum and JJ Rehabilitation Policy, 2015) and the DUSIB Protocol (Draft Protocol for removal of Jhuggis and JJ Bastis in Delhi).
- Whether the procedural safeguards in Re: Directions in the matter of demolition of structures apply.
- How far courts should defer to executive assessment citing national security/strategic location.
2. Summary of the Judgment
The Court disposed of the petitions without quashing the relocation/eviction process. It held that:
- JJ dwellers’ rights to shelter and livelihood are protected under Article 21, but relocation per se is not unconstitutional if the State ensures the safeguards contemplated by DUSIB Policy/Protocol.
- Re: Directions in the matter of demolition of structures was held inapplicable, inter alia because the Supreme Court excluded “unauthorized structure in any public place” and because the SC case was about demolitions linked to accused/convicted persons rather than standard encroachment clearance coupled with rehabilitation.
- Even if there were deviations from the DUSIB Protocol (e.g., survey/eligibility process, draw of lots), they did not warrant interference under Article 226 because no prejudice was shown (all petitioners were deemed eligible; many had already accepted allotments/taken possession).
- The State’s justification—strategic sensitivity adjacent to an operational Air Force Station and strengthening defence infrastructure—was treated as a sufficiently specific reason, attracting judicial restraint in policy matters.
Operative directions
- Respondents must ensure compliance with DUSIB Policy and DUSIB Protocol, including education, travel, water, sanitation, etc., at the alternate site.
- Respondents are bound by the relaxation of beneficiary contribution (to be borne by the Union/MoHUA) and time for maintenance charges.
- Petitioners must obtain allotment letters and take possession; they must vacate within 15 days, failing which the State may act in accordance with law.
- Liberty to approach the Court afresh if respondents fail to fulfil obligations in para 49.
3. Analysis
3.1 Precedents Cited (and their role)
(a) Re: Directions in the matter of demolition of structures
The petitioners invoked this decision to demand individualised procedural safeguards (show cause notice, hearing, reasoned order). The Court treated it as inapplicable on two grounds drawn from the judgment itself:
- The Supreme Court expressly stated that directions would not apply to unauthorized structures in public places (road, street, footpath, etc.).
- The Supreme Court’s scope was framed around demolitions targeting persons accused/convicted of crimes, unlike the present case which involved clearing government land for strategic/public purposes alongside rehabilitation.
The Delhi High Court also noted the statutory definition of “jhuggi” in the DUSIB Act (structure not duly authorised), reinforcing the characterization of occupation as unauthorised for the purpose of this exclusion.
(b) Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors.
This is the foundation for linking livelihood to Article 21 and the proposition that deprivation is permissible only by “procedure established by law.” The Court used Olga Tellis to:
- Acknowledge that eviction can severely impact livelihood, thus implicating Article 21.
- Frame the decisive test as whether the State’s procedure and safeguards are reasonable and lawful—here, via DUSIB’s policy-protocol architecture.
(c) Shantistar Builders v. Narayan Kaimalal Totame
Cited to emphasize that shelter under Article 21 is not a bare roof; it must enable human development. The Court relied on this reasoning to hold that the State must ensure essential amenities so that relocation does not degrade dignity and opportunities.
Used to situate shelter as a constitutional value and to demonstrate judicial acceptance of State action aimed at housing the poor, even when it burdens others—thereby supporting the legitimacy of State-led rehabilitation schemes.
This decision was employed for the dual proposition that:
- No one has a right to encroach on public land, but
- The State has a constitutional duty to provide shelter opportunities to make Article 21 meaningful.
The Court’s approach mirrors this balance: removal is permissible, but must be paired with meaningful rehabilitation.
(f) Sudama Singh & Others v. Government Of Delhi & Anr. and Anr. and Ajay Maken v. Union of India
These Delhi High Court authorities were pivotal to the Court’s rights-based lens on JJ dwellers:
- Sudama Singh & Others v. Government Of Delhi & Anr. and Anr. was identified as a key antecedent to the framing of DUSIB Policy and DUSIB Protocol, embodying procedural and substantive safeguards in evictions/relocations.
- Ajay Maken v. Union of India was relied on for articulating housing as a “bundle of rights” (livelihood, health, education, food, water, sewerage, transport), and for rejecting a narrow “illegal occupant without rights” approach.
Cited to justify restraint under Article 226: even if an order is found illegal, certiorari is discretionary; courts may refuse relief where substantial justice is being done or where equities weigh against interference. The Court invoked this to reject “resetting” the allotment process after many beneficiaries had accepted flats and taken possession.
(h) Ex-Armymen's Protection Sevices Private Limited v. Union of India and Ors. (also quoting Secy. of State for Home Deptt. v. Rehman)
This precedent anchored judicial deference where the executive invokes national security:
- National security is characterized as policy and judgment, not a pure question of law.
- In such cases, strict natural justice may be excluded depending on facts.
The Court used it to accept the “strategic/protected zone adjacent to an operational Air Force Station” rationale as a legitimate, specific basis for clearance and to caution against intrusive judicial review of such policy choices.
(i) Executive Pilots Association & Anr. v. Air India Limited & Ors.
Used to restate limits of writ review over policy decisions: courts do not run governments; interference is limited to mala fides, unreasonableness, or arbitrariness. This fortified the Court’s unwillingness to substitute its view for the executive’s on the necessity/timelines of clearance.
3.2 Legal Reasoning
(a) Article 21: relocation is permissible, but dignity-based safeguards are mandatory
The Court accepted the petitioners’ central premise: livelihoods, schooling, healthcare access, transport, water and sanitation are integral to Article 21 in the rehabilitation context (drawing from Olga Tellis, Shantistar, Ajay Maken).
However, it reframed the constitutional question: eviction + rehabilitation is not unconstitutional merely because it is disruptive. The legality turns on whether the State ensures the rehabilitative ecosystem promised by its policy and protocol. This is reflected in the Court’s reliance on Clause 6D(vii) of the DUSIB Protocol (requests for nearby school admissions, dispensary/Mohalla clinic, DTC buses, drinking water and sewerage).
(b) Re: Directions: carefully confined to its text and purpose
The Court did not treat Re: Directions as a general “super-procedure” for all removals; it applied the Supreme Court’s own carve-outs and the limited scope statement in that judgment. This is a significant interpretive move: procedural obligations for JJ evictions in Delhi are anchored primarily in the DUSIB Act/Policy/Protocol, not the demolition guidelines in Re: Directions.
(c) Policy compliance vs. “prejudice”: a pragmatic Article 226 approach
The Court acknowledged that the process did not “strictly” follow DUSIB Protocol in parts (survey/eligibility machinery; objections about absence of representatives in draw of lots). Yet it declined to invalidate the exercise because:
- All petitioners were deemed eligible; hence alleged defects caused no demonstrated prejudice.
- The draw of lots was computerized; thus the fairness concern was diluted.
- Substantial third-party reliance had crystallized: many had accepted allotment letters, taken possession, and applied for electricity meters.
This reasoning treats procedural compliance as a means to protect rights; where outcomes already secure rights (eligibility granted; rehabilitation offered) and reversal would harm others, the writ court prioritizes equitable finality.
(d) “In-situ within 5 km” is a preference, not an absolute command
Petitioners argued DUSIB Policy mandates in-situ rehabilitation and allows relocation beyond 5 km only in exceptional circumstances. The Court relied on Clause 2(iii) to hold relocation beyond 5 km is permitted with prior Board approval. The respondents’ explanation—no available housing units/sites within 5 km, ARHC-related administrative constraints, and approvals through the HPC and DUSIB Board—was accepted as meeting the “exceptional circumstances” threshold on record.
(e) Strategic/national security justification: limited review
The Court accepted the respondents’ stated reason (strategic location/protected zone adjoining an operational Air Force Station) and invoked Ex-Armymen’s Protection Sevices Private Limited v. Union of India and Ors. to avoid overstepping into national security policy assessment. The Court’s approach suggests that where the executive articulates a plausible strategic rationale, review will likely focus on ensuring rehabilitation safeguards rather than blocking clearance.
3.3 Impact
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Clarified procedural framework: For JJ cluster removals coupled with rehabilitation in Delhi, the primary compliance yardstick is the DUSIB Policy/Protocol; Re: Directions in the matter of demolition of structures will not automatically apply, especially where the Supreme Court’s public-place exclusion and narrow scope are engaged.
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Prejudice-based scrutiny under Article 226: Even where there are protocol deviations, courts may refuse to set aside the process absent demonstrated prejudice—particularly when relocation has substantially progressed and third-party reliance has arisen.
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Rights-protective but clearance-permissive model: The decision reinforces that Article 21 does not create an absolute veto against eviction/relocation; it imposes a positive obligation to make rehabilitation meaningful (transport, education, healthcare, water, sewerage).
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Strategic land clearances: Where national security/strategic sensitivity is pleaded with specificity, courts are likely to show restraint and focus on mitigation through robust rehabilitation rather than halting the clearance.
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Future litigation pathway: By granting liberty to file a fresh petition if rehabilitation obligations are not met, the Court signals a continuing judicial role at the implementation stage—shifting disputes from “whether relocation” to “whether dignified relocation.”
4. Complex Concepts Simplified
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Article 21 (Right to life): Not just survival; it includes living with dignity. Courts have read into it the right to livelihood and reasonable shelter.
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“Bundle of rights” in housing cases: Housing is not merely a flat/unit. It includes access to transport, water, sanitation, healthcare, schooling, and proximity enabling livelihood (as emphasized in Ajay Maken v. Union of India).
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In-situ rehabilitation: Rehousing on the same land or nearby (here, within 5 km). Policy may still allow relocation beyond 5 km in exceptional situations with approval.
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DUSIB Protocol (Clause 6D(vii)): A checklist-like set of “post-survey steps” requiring DUSIB to coordinate with education/health/transport authorities and ensure water/sewerage—designed to reduce disruption from relocation.
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Article 226 discretion: Even if a legal flaw is found, the High Court can refuse relief when equities, public interest, third-party reliance, or absence of prejudice make interference counterproductive.
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Judicial restraint in national security: Courts generally avoid second-guessing executive assessments of security needs; they instead ensure minimum legality and safeguards.
5. Conclusion
This judgment consolidates a pragmatic constitutional balance: JJ dwellers are rights-bearers under Article 21, yet the State may clear unauthorised settlements for strategic/public purposes provided it delivers policy-compliant, dignity-preserving rehabilitation. The Court’s key move is to treat DUSIB Policy/Protocol as the principal safeguards framework for Delhi rehabilitations and to confine Re: Directions in the matter of demolition of structures to its textual exclusions and purpose. The decision’s lasting significance lies in its implementation-focused remedy: allowing clearance to proceed while binding the State to concrete, enforceable rehabilitative obligations—and keeping the door open to renewed judicial intervention if those obligations are not met.