Law and You >Procedural Laws > BNSS > Provisions Related to Disputes as to Immovable Property (Ss. 164 to 167 BNSS)
Disputes over immovable property often serve as a root cause of tensions that escalate into breaches of peace, particularly in rural and semi-urban areas. Recognizing the potential for such disputes to disrupt public order, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), provides specific provisions under Sections 164 to 167 to empower Executive Magistrates to take preventive action. These provisions are designed not to resolve ownership or title, but to maintain status quo and prevent violence or unlawful dispossession until competent civil courts can adjudicate the underlying rights.
This article explores the legal framework governing these provisions, their objectives, procedures, and the judicial interpretation that shapes their practical application. It also delves into the distinction between civil remedies and criminal preventive jurisdiction in property-related disputes, highlighting how the BNSS balances individual property rights with the broader interest of public peace and security.
The provisions of the law dealing with prevention of offences relating to disputes as to immovable property are contained in Chapter XI of the Bharatiya Nagarik Suraksha Sanhita, 2023 comprising sections 164 to 167 BNSS. These four sections which deal with the following subjects, namely:
- Procedure where dispute concerning land, etc. is likely to cause breach of Peace.
- Power to attach subject of dispute.
- Disputes concerning rights of use of immovable property etc.
- Local Inquiry.
S. 164 BNSS:
Procedure where Dispute Concerning Land or Water is Likely to Cause Breach of Peace:
(1) Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on aspecified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in the manner provided by this Sanhita for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute: Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject of dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed;
(b) the order made under this sub-section shall be served and published in the manner laid down in subsection (3).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 126.
Executive Magistrate can take action when from a police report or other information received by him, he is satisfied that a dispute likely to cause a breach of the peace exists concerning any immovable property, i.e., land or water or the boundaries thereof, or buildings, markets, fisheries crops or other produce of land, and the rents or profits of such property, within the local limits of his jurisdiction.
Proceedings under section 164 BNSS are meant to prevent breach of peace and to avert any dispute as a precautionary measure and to maintain status quo till the parties have their matter decided by Civil Court of Competent jurisdiction.
Essentials for Application of Section 164 BNSS:
To give jurisdiction to a Magistrate under section 164(1) BNSS the following are the essential requirements:
- That there exists a dispute.
- That it is likely to cause breach of peace.
- That the dispute is concerning land or water or boundaries thereof and buildings, markets, fisheries, crops or other produce of the land and the rents or profits of such property.
- That the alleged dispossession is within two months prior to the initial order passed by the Magistrate, and
- That it is within the territorial limits of the Magistrate.
Under Section 164(1) BNSS, being satisfied from report / information the Executive Magistrate taking action in such dispute shall make a written order stating the grounds of his being so satisfied and requiring the parties to appear before him within affixed time and put in written statements of their respective claims as respects the fact of actual possession of the subject in dispute.
According to Section 164(3) BNSS, order shall be served as a summons and a copy of it shall be published by being affixed to some conspicuous place at or near the subject of dispute.
Under Section 164(4) BNSS, the Magistrate is to make an inquiry as to possession. He shall (irrespective of the merits of the case) peruse the statements, so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence if any as he thinks necessary, and if possible decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject without reference to the fact as to who is the owner or who had right to possession. If, the Executive Magistrate decides that one of the parties was or should be treated as being in such possession, he shall declare that possession in his favour, and if that party was forcefully and wrongfully dispossessed within two months next before the date on which the report of a Police Officer or other information was received or after that date and before the date of his order under sub-sec.(I), he may restore to possession the party forcibly and wrongfully dispossessed.
According to Section 164(5) BNSS, if any party shows that no dispute as aforesaid exists or has existed, the Magistrate shall cancel his initial order and stay all further proceedings thereon but subject to such cancellation, the order of the Magistrate initially passed shall be final.
According to Section 164(6) BNSS, whenever, possession of a party is decided and declared, such party is entitled to continue in possession until otherwise ordered by an order from a competent Court. The Magistrate shall further forbid all disturbances of such possession until such eviction and when a party has forcibly and been wrongfully dispossessed within two months next before the date of the initial order he may restore possession to it.
According to Section 164(7) BNSS, when a party to any such proceedings dies, the Magistrate may cause the legal representatives of the deceased party to be made a party to the proceeding and shall thereupon, continue the inquiry if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is all persons claiming to be representatives of the deceased party shall be made parties thereto.
According to Section 164(8) BNSS, if any standing crop or other produce of the property in dispute, is subject to speedy and natural decay, the Executive Magistrate may make an order for the proper custody or sale of such property and after the completion of the inquiry, shall make such order of the disposal of such property or the sale proceeds thereof as he thinks fit.
According to Section 164(9) BNSS, the Magistrate may, if he thinks fit, at any stage of the proceedings under section 164 on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
Preliminary Order and Final Order:
The preliminary order sets the machinery of law into motion. The final order declares which party is in possession and states that such party will continue in possession until evicted by a decree of Civil Court and forbids all disturbance of such possession. Both preliminary and final orders are passed by the same Magistrate. Both preliminary and final orders are passed in exercise of the powers vested in the Magistrate under section 164 BNSS. However, the preliminary order is under Section 164(1) BNSS while final order is under Section 164(4) BNSS.
Difference between Exercise of Power under Section 126 And164 BNSS:
The exercise of the power under section 164 BNSS is mandatory. The difference between section 126 and 164 BNSS is that section 126 BNSS does deal with the prevention of breach of peace but it is altogether general in nature whereas section 164 BNSS deals with a specific case in which a dispute is likely to cause breach of peace is alleged to exist, among others, regarding immovable property. In this view section 164 BNSS which is special in nature, would apply to the case involving dispute as to possession of immovable property in preference of section 126 BNSS.
Difference between Exercise of Power under Section 131 and 164 BNSS:
Section 131 BNSS relates to security for keeping peace and for good behaviour which in fact touch the liberty of a person and smack of being punitive while nature of proceedings under Chapter XI relates to avoidance of nuisance or apprehended danger and smack of being civil nature. Former relates to apprehension of person and latter to the attachment of property.
Notes:
- The mere pendency of a civil suit regarding the subject matter of dispute will not deprive the jurisdiction of the Executive Magistrate to take action under Section 164 BNSS.
- Simultaneous proceedings under Sections 126 and 164 BNSS between the same parties not barred.
- An order under Section 164 BNSS pronounced in open Court must be deemed to be duly promulgated so far as the parties to the case are concerned. Therefore, disobedience of an order passed under Section 164 BNSS would be punishable under Section 223 BNS.
S. 165 BNSS:
Power to Attach Subject of Dispute and to Appoint Receiver:
(1) If the Magistrate at any time after making the order under sub-section (1) of section 164 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 164, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof: Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908 (5 of 1908):
Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate—
(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;
(b) may make such other incidental or consequential orders as may be just.
If, the Executive Magistrate at any time, after making the order under Section 164(1) BNSS, considers the case to be one of the emergency or if he decides that none of the parties was then in such possession as is referred to in section 164 BNSS or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may under Section 165(1) BNSS attach the subject of dispute until a competent Civil Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof. Provided further, that he may withdraw the attachment any time, if he is satisfied that there is no longer any likelihood of Breach of the peace with regard to the subject of dispute.
S. 166 BNSS:
Dispute Concerning Right of Use of Land or Water:
(1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on a specified date and time and to put in written statements of their respective claims.
Explanation.—For the purposes of this sub-section, the expression “land or water” has the meaning given to it in sub-section (2) of section 164.
(2) The Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 164 shall, so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
(4) When in any proceedings commenced under sub-section (1) of section 164 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1), and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 164, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 164.
Section 166 of the BNSS, deals with disputes concerning the right of use of land or water. The section specifically addresses disputes related to the right to use land or water, whether claimed as an easement or otherwise. The core concern is the potential for a breach of the peace arising from the dispute.
According to Section 166(1) BNSS, whenever an Executive Magistrate is satisfied from the report of a Police Officer or upon other information that a dispute likely to cause a Breach of the Peace exists, regarding any alleged right of user of any land, or water, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such disputes to attend his court in person or by Pleader on a specific date and time and to put in written statements of their respective claims.
According to Section 166(2) BNSS, on the date of inquiry and filing of written statements etc., the Executive Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, consider the effect of such evidence and if possible, decide whether such right exists and the provisions of Section 164 BNSS shall so far as may be, apply in the case of such inquiry.
According to Section 166(3) BNSS, if it appears to him that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right.
Rights of User of Land or Water:
Much law has developed by the judicial precedents of the Superior Courts on this point. Thus the following are rights of user of land and water:
- A right to enter a place of public worship and to worship therein.
- A right to bury the dead in the burial ground.
- A right to erect a bund.
- A right to go upon the land of another to collect gratuities for a certain religious purpose.
- A right of way absolute or limited by exclusion of vehicular traffic.
- A right to lie warps in the street.
- A right to let off water by its natural course.
- A right to fish.
Proceedings started Section 166 BNSS can be converted to one under Section 164 BNSS in appropriate cases and those started Section 164 BNSS can be converted to one Section 166 BNSS, after recording reasons.
S. 167 BNSS:
Local Inquiry:
(1) Whenever a local inquiry is necessary for the purposes of section 164, section 165 or section 166, a District Magistrate or Sub-divisional Magistrate may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such written instructions as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.
(2) The report of the person so deputed may be read as evidence in the case. (3) When any costs have been incurred by any party to a proceeding under section 164, section 165 or section 166, the Magistrate passing a decision may direct by whom such costs shall be paid, whether by such party or by any other party to the proceeding, and whether in whole or in part or proportion and such costs may include any expenses incurred in respect of witnesses and of advocates’ fees, which the Court may consider reasonable.
Under Section 167 BNSS for the purpose of Section 164, 165 or166 BNSS, if the local inquiry is felt necessary, the District Magistrate or Sub-Divisional Magistrate may depute any subordinate Executive Magistrate to conduct such inquiry and submit report and that report can be read as evidence in the case.
A property is situated at some place and its demarcation or knowing its boundaries with exact measurement identifies it well.
The inquiry under this Section 167 is to be conducted by a Magistrate. It is not merely an executive act. It is a judicial act and the Magistrate must give notice to the parties, examine witnesses and then prepare a report. This report of the Magistrate who holds the inquiry may be read as evidence. It is a matter of common sense that report will be in favour of a party and adverse to the other party. The part affected by the report should be given an opportunity of rebutting it and for that purpose both the parties should be given copies of the report.
The costs in respect of proceedings under Chapter XI can be awarded under section 167(2) BNSS.
Conclusion:
The provisions under Sections 164 to 167 of the BNSS serve a vital preventive function by addressing the immediate threat of breach of peace arising from disputes concerning possession of immovable property. While these provisions do not adjudicate on ownership or title, they play a crucial role in maintaining public order and ensuring that individuals are not unlawfully dispossessed.
By empowering Executive Magistrates to intervene swiftly and maintain the status quo, the BNSS provides a mechanism for temporary relief in volatile situations. However, the final resolution of property rights must be pursued through the appropriate civil courts. The judicial interpretation of these sections underscores the importance of procedural fairness and timely action, balancing individual rights with the collective need for peace and security.
In essence, these provisions exemplify the preventive and pragmatic approach of criminal law in supporting civil justice and preserving social harmony.