Section 164 of BNSS, 2023 — Procedure Where Dispute Concerning Land or Water Is Likely to Cause Breach of Peace

Introduction

Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a preventive procedure for dealing with disputes concerning land, water or their boundaries where such disputes are likely to cause a breach of the peace.

The provision empowers an Executive Magistrate to inquire into the actual possession of the disputed subject and to make an order protecting the party found to be in possession, without deciding the underlying legal title or ownership of the property.

Section 164 substantially corresponds to Section 145 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Section 164

Section 164 applies when an Executive Magistrate receives information indicating that a dispute concerning land, water or their boundaries is likely to cause a breach of peace.

The Magistrate conducts a limited preventive inquiry primarily to determine who was in actual possession of the disputed property at the relevant time.

The provision is not intended to decide:

• ownership of the property;
• title to the property;
• the ultimate civil rights of the parties; or
• the merits of competing claims to legal possession.

Its immediate purpose is to prevent a breach of peace arising from a dispute over possession.

Statutory Basis

The principal provision is Section 164 of BNSS, 2023.

It falls under Chapter XI — Maintenance of Public Order and Tranquillity, specifically the provisions dealing with disputes as to immovable property.

Related provisions include:

• 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
• Section 126 — Security for keeping peace in certain circumstances

Object and Purpose

The primary purpose of Section 164 is to prevent violence and disturbance of public peace arising from disputes concerning possession of property.

The provision allows the Executive Magistrate to intervene where:

• a property dispute exists;
• the dispute concerns land, water or their boundaries; and
• the dispute is likely to cause a breach of the peace.

The Magistrate can determine the party entitled to retain actual possession until that party is evicted through due process of law.

Nature of Section 164

Section 164 is preventive and temporary in character.

The Magistrate does not exercise the jurisdiction of a civil court to determine title.

The inquiry is directed primarily towards the question of actual possession.

Therefore, even where one party claims ownership, the Magistrate’s inquiry under Section 164 is not a final adjudication of ownership.

The civil court remains competent to determine the ultimate rights of the parties.

Essential Elements

1. Existence of a Dispute

There must be a dispute concerning:

• land;
• water; or
• the boundaries of land or water.

The dispute must be of a nature contemplated by Section 164.

2. Likelihood of Breach of Peace

The dispute must be likely to cause a breach of the peace.

This requirement is central to the exercise of jurisdiction.

A purely private property dispute, without the requisite likelihood of breach of peace, does not automatically justify proceedings under Section 164.

3. Information Before the Magistrate

The Executive Magistrate may become satisfied about the existence of the dispute from:

• a report of a police officer; or
• other information.

The source of information therefore need not necessarily be a police report.

4. Executive Magistrate’s Satisfaction

The Magistrate must be satisfied that the relevant dispute exists and is likely to cause a breach of peace.

The Magistrate must record the grounds of such satisfaction in the written order.

5. Written Order

The Magistrate must make an order in writing stating the grounds of the Magistrate’s satisfaction.

The order requires the concerned parties to:

• attend the Magistrate’s Court personally or through an advocate;
• appear on the specified date and time; and
• submit written statements concerning their respective claims regarding actual possession of the disputed subject.

Meaning of “Land or Water”

For Section 164, the expression “land or water” has a wide meaning.

It includes:

• buildings;
• markets;
• fisheries;
• crops;
• other produce of land; and
• rents or profits arising from such property.

Therefore, the provision is not confined to bare parcels of land.

Service and Publication of the Order

A copy of the Magistrate’s order must be served in the manner prescribed by the BNSS for service of summons upon such persons as the Magistrate directs.

At least one copy must also be published by affixing it at a conspicuous place:

• at the subject of the dispute; or
• near the subject of the dispute.

This ensures that the parties and persons concerned are made aware of the proceedings.

Procedure Under Section 164

Step 1: Receipt of Information

The Executive Magistrate receives a police report or other information concerning a dispute over land, water or their boundaries.

Step 2: Satisfaction Regarding Breach of Peace

The Magistrate considers whether the dispute is likely to cause a breach of peace.

Step 3: Written Preliminary Order

If satisfied, the Magistrate passes a written order stating the grounds of such satisfaction.

Step 4: Appearance of Parties

The parties are required to appear before the Magistrate personally or through an advocate on the specified date and time.

Step 5: Written Statements

The parties submit written statements setting out their respective claims concerning the fact of actual possession.

Step 6: Consideration of Statements and Evidence

The Magistrate considers the written statements, hears the parties and receives the evidence produced by them.

The Magistrate may also take further evidence considered necessary.

Step 7: Determination of Possession

If possible, the Magistrate determines which party was in possession of the disputed property on the date of the preliminary order.

Step 8: Order Protecting Possession

Where the Magistrate determines which party was in possession, an order may be issued declaring that party entitled to possession until eviction in due course of law.

The order also prohibits disturbance of such possession.

Important Principle: Possession, Not Title

One of the most important aspects of Section 164 is that the Magistrate does not decide the merits of the parties’ claims to legal title or right to possess the property.

The statutory inquiry is directed towards actual possession.

For example, if A claims ownership of a piece of land and B claims that B has been in actual possession of it, the Magistrate under Section 164 is concerned primarily with determining who was actually in possession at the relevant time, rather than finally deciding whether A or B is the legal owner.

The question of title can be determined by a competent civil court.

Forcible and Wrongful Dispossession

Section 164 contains an important protection for a person who has recently been forcibly and wrongfully dispossessed.

If the Magistrate finds that a party was forcibly and wrongfully dispossessed:

• within two months immediately preceding the date on which the police report or other information was received by the Magistrate; or
• after such information was received but before the Magistrate’s preliminary order,

the Magistrate may treat that party as though that party had been in possession on the date of the order.

The Magistrate may consequently restore that party to possession.

This prevents a person from obtaining an advantage merely by forcibly dispossessing another person shortly before preventive proceedings begin.

Order Declaring Entitlement to Possession

Where the Magistrate decides that one party was in possession, or is required to be treated as being in possession under the statutory proviso concerning wrongful dispossession, the Magistrate may:

• declare that party entitled to possession;
• allow the party to retain possession until eviction in due course of law; and
• prohibit disturbance of that possession until such lawful eviction.

Where the Magistrate proceeds on the basis of recent forcible and wrongful dispossession, the Magistrate may also restore the dispossessed party to possession.

Death of a Party

If a party to the proceedings dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding.

The inquiry can then continue.

If there is a dispute concerning who is the legal representative, all persons claiming to represent the deceased party may be made parties to the proceeding.

Crops and Other Perishable Produce

Where crops or other produce forming part of the disputed property are subject to speedy and natural decay, the Magistrate may make appropriate orders concerning their:

• custody; or
• sale.

After completing the inquiry, the Magistrate may make an appropriate order regarding disposal of the produce or the sale proceeds.

This prevents valuable property from being destroyed merely because the proceedings are pending.

Summons to Witnesses

At any stage of the proceedings, the Magistrate may, on the application of either party, issue a summons to a witness.

The summons may require the witness:

• to attend before the Magistrate; or
• to produce a document or thing.

This assists the Magistrate in determining the question of actual possession.

Cancellation of the Proceedings

A person required to attend the proceedings, or any other interested person, may show that no dispute of the kind contemplated by Section 164 exists or has existed.

If the Magistrate is satisfied that no such dispute exists, the Magistrate must:

• cancel the preliminary order; and
• stay all further proceedings based upon it.

Subject to such cancellation, the preliminary order under Section 164(1) is final for the purposes of the statutory proceeding.

Power to Attach the Property

Section 165 deals with attachment of the subject matter of the dispute.

Where appropriate circumstances exist, including an emergency or where the Magistrate cannot determine which party was in possession, the disputed property may be attached.

The Magistrate may also make arrangements for its custody and, where appropriate, appoint a receiver.

Section 165 therefore operates as an important supplementary provision to Section 164.

Relationship with Section 166

Section 166 deals with disputes concerning an alleged right of user of land or water, including easementary rights.

Examples may include disputes concerning:

• a right of way;
• a right to use water; or
• another alleged right of user.

Section 164 primarily concerns actual possession, whereas Section 166 concerns an alleged right of user.

Powers of the Executive Magistrate

Under Section 164, the Magistrate may:

• initiate proceedings upon a police report or other information;
• require parties to appear;
• require written statements concerning actual possession;
• hear the parties;
• receive evidence;
• take further evidence where necessary;
• determine actual possession, where possible;
• recognise the right of a party to retain possession until eviction in due course of law;
• prohibit disturbance of such possession;
• restore possession to a party recently and wrongfully dispossessed;
• deal with perishable crops or produce;
• summon witnesses and require production of documents or things; and
• continue proceedings through the legal representatives of a deceased party.

Limitations on the Magistrate’s Power

The Magistrate cannot use Section 164 to finally decide:

• ownership;
• title;
• permanent civil rights in the property; or
• the ultimate legal entitlement to the property.

The Magistrate’s jurisdiction is preventive and is primarily concerned with actual possession for the purpose of preventing a breach of peace.

The protection given to a party under Section 164 continues only until that party is evicted in due course of law.

Section 164 and Civil Court Proceedings

A proceeding under Section 164 does not replace a civil suit concerning title or ownership.

The Magistrate’s order is concerned with maintaining peace and regulating possession during the relevant period.

A competent civil court may subsequently determine the parties’ substantive rights in accordance with civil law.

The expression “until evicted therefrom in due course of law” is particularly significant because it makes clear that the Magistrate’s order does not create permanent title in favour of the party found to be in possession.

Important Distinctions

Section 164 BNSS and Civil Suit

Section 164 is a preventive criminal-procedure mechanism concerned primarily with actual possession and prevention of breach of peace.

A civil suit can determine substantive rights such as title and ownership.

Possession and Ownership

Possession means actual control or occupation of the property.

Ownership is a legal title or proprietary right.

The Magistrate under Section 164 does not finally adjudicate ownership merely by deciding which party was in possession.

Section 164 BNSS and Section 165 BNSS

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

Section 165 deals with attachment of the disputed property and appointment of a receiver in appropriate circumstances.

Section 164 BNSS and Section 166 BNSS

Section 164 concerns disputes relating to actual possession of land or water.

Section 166 concerns disputes relating to an alleged right of user of land or water.

BNSS and CrPC

Section 164 BNSS substantially corresponds to Section 145 CrPC.

The core framework has been retained:

• an Executive Magistrate may act upon a police report or other information;
• the dispute must concern land, water or their boundaries;
• there must be a likelihood of breach of peace;
• the Magistrate determines actual possession rather than title;
• recently and wrongfully dispossessed parties receive statutory protection;
• possession may be protected until eviction in due course of law.

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 145 CrPC remain relevant to Section 164 BNSS where the statutory language and framework have substantially continued.

Important Case Law

R.H. Bhutani v. Miss Mani J. Desai

The Supreme Court explained the preventive nature of proceedings under the corresponding Section 145 CrPC.

The focus of the Magistrate’s inquiry is possession rather than the ultimate question of title.

The case is relevant to understanding the limited scope of proceedings concerning disputes over possession.

Ram Sumer Puri Mahant v. State of U.P.

The Supreme Court emphasised the relationship between proceedings under Section 145 CrPC and civil proceedings.

Where a competent civil court is already seized of the dispute and the question of possession is capable of being effectively addressed in the civil proceeding, parallel proceedings under Section 145 require careful consideration.

The principle remains relevant to the preventive nature of Section 164 BNSS.

Ashok Kumar v. State of Uttarakhand

The Supreme Court reiterated that proceedings under Section 145 CrPC are intended to prevent breach of peace concerning possession and are not designed to determine title.

The decision is useful for understanding the limited jurisdiction of the Executive Magistrate in possession disputes.

Constitutional Connection

Section 164 serves a public-order function by preventing disputes over property from escalating into violence or breach of peace.

At the same time, the exercise of the power must comply with constitutional principles of fairness and legality.

The provision does not confer upon an Executive Magistrate unlimited authority to determine property rights. The limited nature of the proceeding and the preservation of civil remedies help maintain the distinction between preventive criminal procedure and adjudication of civil rights.

Common Confusions

Does the Magistrate decide who owns the property?

No.

The Magistrate primarily determines actual possession for the purpose of preventing a breach of peace. Questions of title and ownership belong to the competent civil court.

Can a person who was recently forcibly dispossessed receive protection?

Yes.

Where the statutory conditions concerning forcible and wrongful dispossession are satisfied, the Magistrate may treat the dispossessed person as being in possession and may restore possession.

Does an order under Section 164 create permanent ownership?

No.

The order protects possession until eviction in due course of law. It does not create or finally determine title.

Can the Magistrate attach the disputed property?

Yes.

Attachment is dealt with separately under Section 165 and may be ordered in the circumstances specified there.

Does every land dispute come under Section 164?

No.

There must be a dispute concerning land, water or their boundaries that is likely to cause a breach of peace.

Example

A and B both claim possession of a particular agricultural field. Tensions between them have increased and the police report that the dispute is likely to result in violence.

The Executive Magistrate, upon being satisfied that the statutory conditions exist, may initiate proceedings under Section 164.

A and B are required to submit their respective claims concerning actual possession. After considering their statements and evidence, the Magistrate may determine which party was in possession at the relevant date.

The Magistrate may then protect that possession until the party is evicted through due process of law.

The Magistrate does not finally decide which person owns the agricultural field.

Topic at a Glance

• Topic: Procedure where dispute concerning land or water is likely to cause breach of peace
• BNSS Section: Section 164
• Corresponding CrPC provision: Section 145
• Nature: Preventive
• Authority: Executive Magistrate
• Trigger: Dispute concerning land, water or their boundaries likely to cause breach of peace
• Source of information: Police report or other information
• Main inquiry: Actual possession
• Title or ownership: Not finally decided
• Written order: Required
• Recent wrongful dispossession: May be treated as possession under the statutory proviso
• Protection: Possession may be protected until eviction in due course of law
• Perishable produce: May be placed in custody or sold
• Attachment: Governed principally by Section 165
• Right of user disputes: Governed principally by Section 166
• Important cases: R.H. Bhutani v. Miss Mani J. Desai, Ram Sumer Puri Mahant v. State of U.P., Ashok Kumar v. State of Uttarakhand

Quick Revision

• Section 164 BNSS deals with disputes concerning land, water or their boundaries that are likely to cause a breach of peace.
• Proceedings may begin on the basis of a police report or other information.
• The competent authority is an Executive Magistrate.
• The Magistrate must record the grounds of satisfaction in a written order.
• Parties are required to submit written statements regarding actual possession.
• The Magistrate hears the parties and considers the evidence.
• The Magistrate determines possession, not title.
• The expression “land or water” includes buildings, markets, fisheries, crops, other produce, and rents or profits from such property.
• A person forcibly and wrongfully dispossessed within the statutory period may be treated as being in possession and may be restored to possession.
• The party found to be in possession may be protected until evicted in due course of law.
• Section 165 BNSS deals with attachment of the disputed property and appointment of a receiver.
• Section 166 BNSS deals with disputes concerning rights of user of land or water.
• The provision substantially corresponds to Section 145 CrPC.
• Section 164 is preventive, not a substitute for a civil suit concerning title or ownership.

ALSO READ: Section 163 – Power to issue order in urgent cases of nuisance or apprehended danger

Conclusion

Section 164 BNSS provides a focused preventive mechanism for maintaining peace when disputes over land, water or their boundaries threaten to result in violence or public disorder. Its central concern is actual possession rather than ownership or title. By allowing the Executive Magistrate to protect possession until the parties obtain appropriate relief through due process of law, the provision seeks to prevent forcible dispossession and escalation of property disputes into breaches of peace.