Section 165 of BNSS, 2023 — Power to Attach Subject of Dispute and to Appoint Receiver

Introduction

Section 165 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides for the attachment of property that is the subject of a dispute concerning land or water when proceedings under Section 164 are being conducted and the circumstances require protective action.

The provision enables an Executive Magistrate to attach the disputed property and, where necessary, appoint a receiver to manage it.

Section 165 substantially corresponds to Section 146 of the Code of Criminal Procedure, 1973 (CrPC).

The purpose of the provision is preventive. It is designed to prevent a dispute over possession from resulting in a breach of peace while the matter is being dealt with under the preventive procedure.

Meaning of Section 165

Section 165 gives the Executive Magistrate power to attach the subject matter of a property dispute in specified circumstances.

Attachment means taking the disputed property under formal control so that the parties cannot use possession of the property to create or escalate a breach of peace.

The Magistrate may also appoint a receiver to take charge of the property and manage it according to the directions of the Magistrate.

The provision does not confer jurisdiction upon the Executive Magistrate to finally determine ownership or title.

Statutory Basis

The principal provision is Section 165 of BNSS, 2023.

It operates in connection with Section 164 BNSS, which deals with disputes concerning land, water or their boundaries that are likely to cause a breach of peace.

Section 165 is therefore a supplementary preventive provision.

The related provisions are:

• Section 164: Procedure where dispute concerning land or water is likely to cause breach of peace
• Section 165: Power to attach subject of dispute and to appoint receiver
• Section 166: Dispute concerning right of use of land or water
• Section 167: Local inquiry

Object and Purpose

The principal purpose of Section 165 is to prevent a disputed property from becoming the immediate cause of violence or breach of peace.

Attachment may be necessary where:

• the Magistrate considers the case to be one of emergency;
• the Magistrate is unable to determine which party was in possession;
• the property needs to be placed under neutral control; or
• protective management of the property is necessary during the proceedings.

The provision therefore supports the preventive purpose of Section 164.

Nature of Section 165

Section 165 is a preventive and interim power.

The Magistrate’s action does not amount to a final adjudication of:

• ownership;
• title;
• permanent possession; or
• other substantive civil rights.

The attachment is intended to maintain peace and preserve the disputed property until the relevant legal dispute is resolved through the appropriate process.

Essential Elements

1. Existence of Proceedings Concerning the Dispute

Section 165 operates in the context of proceedings concerning a dispute over land, water or their boundaries that may cause a breach of peace.

It is therefore closely connected with Section 164.

2. Emergency

Where the Magistrate considers the case to be one of emergency, the Magistrate may attach the subject of the dispute.

The emergency must justify taking the property out of the control of the disputing parties for preventive purposes.

3. Inability to Determine Possession

Where the Magistrate decides that none of the parties was then in possession, or is unable to determine which of them was in possession, the Magistrate may proceed to attach the property.

This prevents the Magistrate from having to choose between competing claims where the evidence does not permit a reliable determination of possession.

4. Attachment of the Subject Matter

The Magistrate may attach the subject matter of the dispute.

The purpose is to prevent either party from exercising disputed possession in a manner likely to result in a breach of peace.

5. Appointment of Receiver

Where the Magistrate attaches the property, the Magistrate may make arrangements for its custody.

The Magistrate may also appoint a receiver to manage the property.

The receiver acts subject to the directions of the Magistrate.

Procedure

Step 1: Property Dispute Comes Before the Magistrate

A dispute concerning land, water or their boundaries is brought before the Executive Magistrate and is considered under the preventive framework.

Step 2: Consideration of Possession

The Magistrate considers the question of actual possession in accordance with Section 164.

Step 3: Emergency or Inability to Determine Possession

If the case is one of emergency, or if the Magistrate cannot determine which party was in possession, the Magistrate may consider attachment.

Step 4: Attachment

The Magistrate attaches the subject matter of the dispute.

Step 5: Custody or Receiver

The Magistrate makes appropriate arrangements for the custody of the property.

Where necessary, a receiver may be appointed to take control and manage the property.

Step 6: Continuation Until Lawful Resolution

The property remains under the arrangement ordered by the Magistrate until the statutory proceedings or appropriate civil proceedings determine the parties’ rights in accordance with law.

Power to Attach Property

Attachment under Section 165 prevents the disputing parties from exercising competing possession over the property.

The purpose is not to punish either party.

It is a protective measure intended to neutralise the immediate source of conflict.

The Magistrate must therefore exercise the power for the purpose of preventing a breach of peace and not for deciding the parties’ ultimate civil rights.

Appointment of Receiver

A receiver is a person appointed to take custody and manage the disputed property.

The receiver may be appointed where neutral management is considered necessary after attachment.

The receiver does not become the owner of the property.

The receiver holds and manages the property subject to the authority and directions of the Magistrate.

Important Principle: Attachment Does Not Decide Title

Attachment under Section 165 does not establish ownership in favour of any party.

For example, if A and B both claim ownership and possession of a particular property, the Magistrate may attach the property where the statutory circumstances exist.

The attachment does not mean that A or B has been declared the owner.

The question of title remains open for determination by the competent civil court.

Relationship with Section 164

Section 164 and Section 165 operate closely together.

Section 164

Section 164 establishes the preventive procedure for a dispute concerning land, water or their boundaries that is likely to cause a breach of peace.

The primary question is actual possession.

Section 165

Section 165 provides the mechanism for attachment and neutral management where the circumstances justify it.

Thus, Section 165 can be understood as an important protective mechanism supporting proceedings under Section 164.

When Can Attachment Be Ordered?

Attachment may be ordered particularly where:

• the matter is one of emergency; or
• the Magistrate is unable to determine which party was in possession.

The power is not intended to be exercised automatically in every property dispute.

The statutory conditions and preventive purpose must be satisfied.

Effect of Attachment

Once the property is attached:

• the disputing parties cannot continue to exercise ordinary possession as though the dispute did not exist;
• the property may be placed under neutral custody;
• a receiver may be appointed where necessary;
• the immediate risk of conflict over possession can be reduced.

Attachment is therefore a means of preserving public peace rather than a method of finally resolving the property dispute.

Receiver and Civil Court

The appointment of a receiver under Section 165 does not prevent a competent civil court from deciding the substantive rights of the parties.

If a civil court subsequently determines the rights of the parties, the Magistrate’s preventive arrangement must operate consistently with the lawful determination of the competent court.

The criminal-procedure mechanism cannot be used to permanently replace civil adjudication of title.

Limitations on the Power

The power under Section 165 is subject to important limitations.

The Magistrate:

• cannot finally determine ownership through attachment proceedings;
• cannot treat attachment as punishment;
• cannot use the provision for an unrelated purpose;
• must exercise the power in connection with the statutory preventive objective; and
• must respect the jurisdiction of competent civil courts over substantive property rights.

Important Distinctions

Attachment and Ownership

Attachment places property under official control.

It does not transfer ownership or determine title.

Attachment and Seizure

Attachment under Section 165 is a preventive measure concerning disputed property.

Seizure is a different procedural concept and may arise in other criminal proceedings for different purposes.

The two concepts should not be treated as interchangeable.

Section 164 and Section 165

Section 164 primarily establishes the procedure for determining actual possession in a property dispute likely to cause breach of peace.

Section 165 provides for attachment and, where necessary, appointment of a receiver.

Receiver and Owner

A receiver is not the owner of the property.

The receiver merely takes custody or manages the property according to the authority granted by the Magistrate.

BNSS and CrPC

Section 165 BNSS substantially corresponds to Section 146 CrPC.

The basic framework has been retained:

• attachment of the subject matter of the dispute;
• attachment in cases of emergency;
• attachment where the Magistrate cannot determine which party was in possession;
• arrangements for custody;
• appointment of a receiver where necessary.

The principal change is the renumbering of the provision under the BNSS.

The corresponding provisions are:

Section 145 CrPC — Section 164 BNSS

Section 146 CrPC — Section 165 BNSS

Section 147 CrPC — Section 166 BNSS

Judicial principles developed under Section 146 CrPC remain relevant to Section 165 BNSS where the statutory framework has substantially continued.

Important Case Law

Ashok Kumar v. State of Uttarakhand

The Supreme Court explained the preventive nature of proceedings under the corresponding provisions of the CrPC concerning disputes over possession.

The purpose of such proceedings is to prevent breach of peace rather than to adjudicate title.

This principle is relevant when understanding attachment under Section 165 BNSS.

Mathuralal v. Bhanwarlal

The Supreme Court considered the nature of proceedings under the corresponding Section 146 CrPC and the relationship between attachment and proceedings concerning possession.

The decision illustrates that attachment is an interim preventive measure and does not itself determine the ultimate civil rights of the parties.

Constitutional Connection

Section 165 must be exercised according to law and in a manner consistent with constitutional protections.

Because attachment can affect a person’s control and enjoyment of property, the power must remain connected to the statutory purpose of preventing breach of peace.

The provision does not authorise arbitrary deprivation of substantive property rights.

The ultimate determination of civil rights remains within the jurisdiction of the competent court.

Common Confusions

Does attachment mean that the government becomes the owner?

No.

Attachment places the disputed property under official control for a preventive purpose. It does not transfer ownership to the government.

Does appointment of a receiver decide who owns the property?

No.

The receiver merely manages the property subject to the Magistrate’s directions.

Can the Magistrate attach property in every land dispute?

No.

Attachment is permitted only where the statutory circumstances justify it, particularly in cases of emergency or where possession cannot be determined.

Does attachment permanently settle the dispute?

No.

The underlying question of title or substantive civil rights remains open for determination by the competent court.

Is Section 165 a punishment?

No.

Attachment is a preventive measure intended to avoid breach of peace.

Example

A and B are involved in a serious dispute over possession of a piece of land. Both claim possession, and the dispute has created a substantial risk of violence.

The Executive Magistrate begins proceedings under Section 164. After considering the material available, the Magistrate is unable to determine which party was actually in possession.

If the statutory conditions are satisfied, the Magistrate may attach the disputed land under Section 165.

The Magistrate may appoint a receiver to manage the property during the relevant period.

The attachment does not determine whether A or B is the owner. That question remains open to determination by the competent civil court.

Topic at a Glance

• Topic: Power to attach subject of dispute and to appoint receiver
• BNSS Section: Section 165
• Corresponding CrPC provision: Section 146
• Nature: Preventive and interim
• Related provision: Section 164 BNSS
• Main power: Attachment of disputed property
• Important circumstances: Emergency or inability to determine possession
• Additional power: Appointment of receiver
• Purpose: Prevention of breach of peace
• Ownership: Not finally determined
• Receiver: Manages property under the Magistrate’s directions
• Civil rights: Remain open for determination by the competent civil court
• Important cases: Ashok Kumar v. State of Uttarakhand, Mathuralal v. Bhanwarlal

Quick Revision

• Section 165 BNSS deals with attachment of the subject matter of a property dispute and appointment of a receiver.
• It substantially corresponds to Section 146 CrPC.
• It operates in connection with proceedings concerning disputes over land, water or their boundaries.
• The power is preventive, not punitive.
• Attachment may be ordered where the case is one of emergency.
• Attachment may also be ordered where the Magistrate cannot determine which party was in possession.
• The Magistrate may make arrangements for custody of the property.
• A receiver may be appointed to manage the property.
• A receiver does not become the owner of the property.
• Attachment does not determine title or ownership.
• The purpose is to prevent a breach of peace.
• The substantive civil rights of the parties remain capable of determination by a competent civil court.
• Section 164 deals primarily with the procedure concerning actual possession, while Section 165 provides for attachment and neutral management.
• Section 164 BNSS corresponds to Section 145 CrPC, while Section 165 BNSS corresponds to Section 146 CrPC.

ALSO READ: Section 164 – Procedure where dispute concerning land or water is likely to cause breach of peace

Conclusion

Section 165 of the BNSS provides an important protective mechanism for property disputes that threaten public peace. By permitting attachment of the disputed property and appointment of a receiver in appropriate circumstances, the provision prevents competing parties from using possession as a source of conflict. Its purpose remains limited to maintaining public order and protecting the property during the preventive proceedings; it does not confer upon the Executive Magistrate the power to finally determine ownership or title.