Section 166 of BNSS, 2023 — Dispute Concerning Right of Use of Land or Water

Introduction

Section 166 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a preventive procedure for disputes concerning an alleged right to use land or water where the dispute is likely to cause a breach of peace.

The provision empowers an Executive Magistrate to inquire into whether the claimed right of use exists and, where appropriate, prohibit interference with the exercise of that right.

Section 166 substantially corresponds to Section 147 of the Code of Criminal Procedure, 1973 (CrPC).

The provision is concerned with the right of user of land or water, rather than primarily with ownership or title.

Meaning of Section 166

Section 166 applies when there is a dispute regarding an alleged right to use land or water within the local jurisdiction of an Executive Magistrate and the dispute is likely to cause a breach of peace.

The claimed right may be:

• an easementary right; or
• any other right of user.

The Magistrate conducts a limited preventive inquiry to determine, if possible, whether the alleged right exists.

Where the right is found to exist, the Magistrate may prohibit interference with its exercise and may, in an appropriate case, direct removal of an obstruction.

Statutory Basis

The principal provision is Section 166 of BNSS, 2023.

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

Related provisions include:

• 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 object of Section 166 is to prevent a dispute concerning the use of land or water from escalating into a breach of peace.

The provision allows the Executive Magistrate to:

• examine the existence of an alleged right of user;
• hear the parties;
• consider the evidence;
• protect an existing right of user from interference; and
• remove an obstruction where appropriate.

The provision therefore serves a preventive public-order function.

Nature of Section 166

Section 166 is primarily preventive and procedural.

The Magistrate’s jurisdiction is not intended to replace the jurisdiction of a competent civil court in determining substantive property rights.

The Magistrate examines whether the alleged right of user exists for the limited purpose of preventing a breach of peace.

The provision may apply to easementary rights as well as other alleged rights of user.

Essential Elements

1. Executive Magistrate

The proceeding is initiated by an Executive Magistrate having local jurisdiction over the land or water concerned.

2. Police Report or Other Information

The Magistrate may act upon:

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

The provision therefore does not require a police report in every case.

3. Existence of a Dispute

There must be a dispute regarding an alleged right of user of land or water.

The claimed right may be:

• an easement; or
• another form of right of use.

4. Likelihood of Breach of Peace

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

This requirement distinguishes Section 166 from an ordinary civil dispute concerning the existence of a right.

The preventive jurisdiction of the Magistrate arises because the dispute presents a potential threat to public tranquillity.

5. Written Order

The Magistrate must make an order in writing.

The order must:

• state the grounds of the Magistrate’s satisfaction; and
• require the concerned parties to appear before the Magistrate on a specified date and time.

The parties may attend:

• personally; or
• through an advocate.

They must also submit written statements of their respective claims.

Meaning of “Land or Water”

Section 166 expressly provides that the expression “land or water” has the meaning assigned to it in Section 164(2) BNSS.

For this purpose, the expression is broad and includes:

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

Thus, Section 166 is not restricted to disputes concerning an empty parcel of land.

Procedure Under Section 166

Step 1: Receipt of Information

The Executive Magistrate receives a police report or other information concerning an alleged right of user of land or water.

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 that the statutory conditions exist, the Magistrate makes a written order stating the grounds of satisfaction.

Step 4: Appearance of Parties

The concerned parties are directed 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 alleged right of user.

Step 6: Hearing and Evidence

The Magistrate:

• considers the written statements;
• hears the parties;
• receives the evidence produced by them;
• considers the effect of that evidence; and
• may take further evidence if necessary.

Step 7: Determination of Right

If possible, the Magistrate decides whether the alleged right of user exists.

The provisions of Section 164 BNSS apply, so far as may be, to the inquiry.

Power to Prohibit Interference

Where the Magistrate finds that the claimed right exists, Section 166 permits the Magistrate to make an order prohibiting interference with the exercise of that right.

The order may, in an appropriate case, include a direction for the removal of an obstruction preventing the exercise of the right.

For example, if a person has a legally recognised right of way across a particular property and another person places an obstruction that interferes with the exercise of that right, proceedings under Section 166 may be used where the statutory conditions are satisfied.

Important Limitation: Recent Exercise of the Right

Section 166 contains an important limitation on the Magistrate’s power to protect a right of user.

Right Exercisable Throughout the Year

Where the right is exercisable throughout the year, the Magistrate cannot make an order protecting the right unless it was exercised within three months immediately preceding the receipt of the police report or other information that led to the inquiry.

Right Exercisable During Particular Seasons or Occasions

Where the right can be exercised only during particular seasons or on particular occasions, the right must have been exercised during:

• the last such season; or
• the last such occasion

before the receipt of the relevant police report or other information.

This requirement prevents a person from invoking Section 166 to protect a right that has not been exercised for a substantial period.

Removal of Obstruction

Where the Magistrate finds that the claimed right exists, the Magistrate may prohibit interference with its exercise.

In an appropriate case, this may include an order directing the removal of an obstruction.

The power is therefore not limited merely to declaring that interference should stop. Where necessary, the Magistrate may also address the physical obstruction preventing the exercise of the right.

Conversion Between Section 164 and Section 166 Proceedings

Section 166 provides flexibility where the nature of the dispute becomes clear only after proceedings have begun.

Proceedings Initially Started Under Section 164

If proceedings commenced under Section 164 reveal that the dispute actually concerns an alleged right of user of land or water, the Magistrate may continue the proceedings as though they had been commenced under Section 166.

The Magistrate must record reasons for doing so.

Proceedings Initially Started Under Section 166

Conversely, if proceedings commenced under Section 166 reveal that the dispute should instead be dealt with under Section 164, the Magistrate may continue the proceedings as proceedings under Section 164.

The Magistrate must again record reasons.

This mechanism prevents technical classification of the original proceedings from defeating the preventive purpose of the law.

Relationship with Section 164

Section 164 and Section 166 deal with closely related but distinct disputes.

Section 164 BNSS

Section 164 primarily concerns a dispute over possession of land or water that is likely to cause a breach of peace.

The Magistrate focuses on the question of actual possession.

Section 166 BNSS

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

The Magistrate focuses on whether the claimed right of use exists and, where appropriate, protects its exercise.

Relationship with Section 165

Section 165 deals with attachment of the subject matter of a dispute and appointment of a receiver.

Section 166, by contrast, deals with an alleged right of user.

The two provisions therefore address different procedural situations even though both fall within the broader framework concerning disputes over land and water.

Powers of the Executive Magistrate

Under Section 166, the Executive Magistrate may:

• initiate proceedings upon a police report or other information;
• issue a written order;
• require the concerned parties to appear;
• permit appearance personally or through an advocate;
• require written statements of the parties’ respective claims;
• hear the parties;
• receive evidence;
• take further evidence where necessary;
• determine, if possible, whether the alleged right exists;
• prohibit interference with an existing right of user;
• order removal of an obstruction in an appropriate case;
• convert proceedings between Section 164 and Section 166 where the nature of the dispute requires it; and
• record reasons when making such a conversion.

Limitations on the Magistrate’s Power

The Magistrate’s power under Section 166 is subject to important limitations.

The Magistrate must:

• have information concerning an alleged right of user;
• be satisfied that a dispute exists;
• find that the dispute is likely to cause a breach of peace;
• follow the prescribed inquiry procedure; and
• comply with the statutory limitation concerning recent exercise of the right.

The provision should not be treated as a general substitute for civil litigation concerning property rights.

Civil Court and Section 166

Section 166 provides a preventive mechanism for maintaining public peace.

It does not transform the Executive Magistrate into a civil court for comprehensive adjudication of property rights.

Where a party seeks a final and binding determination of substantive rights, the appropriate civil proceedings remain available.

The Magistrate’s order operates within the limited statutory framework of preventing interference and maintaining public tranquillity.

Important Distinctions

Right of User and Possession

A right of user concerns the legal entitlement to use another person’s land or water in a particular manner.

Possession concerns actual control or occupation of property.

Section 166 primarily concerns an alleged right of user, whereas Section 164 primarily addresses disputes concerning possession.

Easement and Ownership

An easement is a right enjoyed by the owner or occupier of one property over another property for a beneficial purpose.

The existence of an easement does not mean that the person exercising the easement owns the land over which the right is exercised.

Section 166 can apply where the claimed right is asserted as an easement.

Section 164 and Section 166

Section 164 concerns disputes likely to cause breach of peace regarding possession of land or water.

Section 166 concerns disputes likely to cause breach of peace regarding an alleged right of user of land or water.

Section 165 and Section 166

Section 165 deals with attachment of disputed property and appointment of a receiver.

Section 166 deals with the existence and protection of a claimed right of user.

BNSS and CrPC

Section 166 BNSS substantially corresponds to Section 147 CrPC.

The basic legal framework has been retained:

• the dispute must concern an alleged right of user of land or water;
• the dispute must be likely to cause a breach of peace;
• the Executive Magistrate may initiate proceedings upon a police report or other information;
• the parties submit written claims;
• the Magistrate hears the parties and considers evidence;
• the Magistrate may determine whether the claimed right exists;
• interference with an established right may be prohibited; and
• an appropriate obstruction may be ordered to be removed.

The corresponding provision is:

Section 147 CrPC = Section 166 BNSS

The principal textual change is the use of modern terminology such as “advocate” in place of the older expression “pleader”.

The substantive framework has otherwise been substantially retained.

Important Case Law

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

The Supreme Court considered the nature of proceedings under the corresponding provisions of the CrPC concerning disputes over land and water.

The decision is relevant to understanding the preventive character of proceedings under this part of criminal procedure.

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

The Supreme Court examined the relationship between preventive proceedings concerning property disputes and proceedings before civil courts.

The decision reinforces the principle that preventive criminal proceedings should not be treated as a substitute for adjudication of substantive civil rights.

The principles are relevant to understanding the limited scope of Section 166 BNSS.

Common Confusions

Does Section 166 decide ownership of the land?

No.

The provision concerns an alleged right of user. It does not confer upon the Executive Magistrate general jurisdiction to finally determine ownership.

Is an easementary right covered by Section 166?

Yes.

The section expressly covers an alleged right of user whether claimed as an easement or otherwise.

Can the Magistrate order removal of an obstruction?

Yes.

Where the Magistrate finds that the claimed right exists, an appropriate order may include removal of an obstruction interfering with the exercise of that right.

Can a right that has not been recently exercised be protected under Section 166?

Generally, no.

The section contains specific requirements regarding recent exercise of the right. A year-round right must have been exercised within the preceding three months, while a seasonal or occasional right must have been exercised during the last relevant season or occasion.

Can a Section 164 proceeding become a Section 166 proceeding?

Yes.

If the Magistrate finds that the dispute is actually about an alleged right of user, the Magistrate may continue the proceeding under Section 166 after recording reasons.

Can a Section 166 proceeding become a Section 164 proceeding?

Yes.

If the Magistrate finds that the dispute should instead be dealt with under Section 164, the proceeding may be continued under Section 164 after recording reasons.

Example

A has a customary right to use a pathway passing through B’s land. B places a gate across the pathway and prevents A from using it. The dispute creates tension and there is a likelihood of breach of peace.

If the statutory requirements are satisfied, the Executive Magistrate may initiate proceedings under Section 166.

A and B submit their respective claims and evidence. If the Magistrate finds that A’s right of user exists, the Magistrate may prohibit interference with that right and, where appropriate, order removal of the obstruction.

The proceeding is intended to prevent a breach of peace and does not serve as a substitute for a comprehensive civil adjudication of property rights.

Topic at a Glance

• Topic: Dispute concerning right of use of land or water
• BNSS Section: Section 166
• Corresponding CrPC provision: Section 147
• Nature: Preventive and procedural
• Authority: Executive Magistrate
• Trigger: Dispute concerning an alleged right of user likely to cause breach of peace
• Right covered: Easementary or other right of user
• Initial material: Police report or other information
• Main inquiry: Whether the alleged right exists
• Possible order: Prohibition of interference with the right
• Additional relief: Removal of obstruction in an appropriate case
• Year-round right: Must have been exercised within the preceding three months
• Seasonal or occasional right: Must have been exercised during the last relevant season or occasion
• Related provision: Section 164 BNSS
• Important distinction: Section 164 concerns possession; Section 166 concerns right of user

Quick Revision

• Section 166 BNSS deals with disputes concerning an alleged right of user of land or water.
• It substantially corresponds to Section 147 CrPC.
• The dispute must be likely to cause a breach of peace.
• Proceedings are initiated by an Executive Magistrate.
• The Magistrate may act upon a police report or other information.
• The Magistrate must issue a written order stating the grounds of satisfaction.
• Parties may appear personally or through an advocate.
• Parties must submit written statements of their respective claims.
• The Magistrate hears the parties and considers the evidence.
• The Magistrate decides, if possible, whether the alleged right exists.
• If the right exists, the Magistrate may prohibit interference with its exercise.
• The Magistrate may, in an appropriate case, order removal of an obstruction.
• A year-round right must have been exercised within the preceding three months.
• A seasonal or occasional right must have been exercised during the last relevant season or occasion.
• Proceedings may be converted between Section 164 and Section 166 when the nature of the dispute requires it, with reasons recorded.
• Section 166 concerns right of user, whereas Section 164 primarily concerns actual possession.
• The provision is preventive and does not replace the jurisdiction of a competent civil court over substantive property rights.

ALSO READ: Section 165 – Power to attach subject of dispute and to appoint receiver

Conclusion

Section 166 of the BNSS provides a preventive mechanism for disputes concerning the use of land or water where the dispute threatens public peace. It enables an Executive Magistrate to examine the alleged right of user and, where the statutory conditions are satisfied, protect that right against interference or remove an obstruction. The provision therefore addresses immediate public-order concerns while leaving the broader determination of substantive property rights to the appropriate legal forum.