Section 164 BNSS: Procedure where dispute concerning land or water is likely to cause breach of peace
Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a preventive procedure where a dispute concerning land, water, or their boundaries is likely to cause a breach of the peace. The Executive Magistrate focuses on actual possession, not final title, so that public peace can be preserved until rights are determined through due process of law.
Section 164 BNSS - statutory text
164. (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 a specified 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 sub-section (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.
What Section 164 BNSS means
Section 164 is designed to prevent a breach of the peace arising from a possession dispute. The Executive Magistrate does not decide ownership or final civil rights. The central question is which party was in actual possession on the relevant date, subject to the special rule for recent forcible and wrongful dispossession.
| Issue | Section 164 rule |
|---|---|
| Trigger | Dispute concerning land, water or boundaries likely to cause breach of peace |
| Authority | Executive Magistrate having local jurisdiction |
| Initial order | Written order stating grounds and requiring parties to file claims about actual possession |
| Main inquiry | Actual possession, not final title or merits of ownership |
| Wrongful dispossession rule | Recent forcible and wrongful dispossession may be treated as continued possession for purposes of the proceeding |
| Final protective order | Party found in possession is protected until evicted in due course of law |
When can proceedings under Section 164 begin?
The Executive Magistrate must be satisfied, either from a police report or other information, that a dispute exists within his local jurisdiction concerning land, water or boundaries and that the dispute is likely to cause a breach of the peace.
The Magistrate must then make a written order stating the grounds for that satisfaction and require the parties to attend personally or through an advocate on a specified date and time and submit written statements concerning actual possession.
Meaning of "land or water"
Section 164(2) gives the expression a broad meaning. It includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of such property.
Service and publication of the preliminary order
A copy of the order must be served in the manner prescribed by the BNSS for service of summons on the person or persons directed by the Magistrate. At least one copy must also be affixed at a conspicuous place at or near the subject of the dispute.
Inquiry is about actual possession, not ownership
Under sub-section (4), the Magistrate must examine the written statements, hear the parties, receive their evidence and take any further evidence considered necessary. The inquiry is expressly conducted without reference to the merits of the parties' claims to a right to possess the property.
The object is to determine, if possible, which party was in actual possession on the date of the preliminary order under sub-section (1).
Two-month rule for forcible and wrongful dispossession
A significant safeguard applies where a party has been forcibly and wrongfully dispossessed shortly before the proceedings. If the dispossession occurred within two months before the date on which the police report or other information was received by the Magistrate, or after that date but before the preliminary order, the Magistrate may treat that party as if it had remained in possession on the date of the order.
What if no such dispute exists?
A party required to attend, or another interested person, may show that the alleged dispute does not exist or has not existed. If the Magistrate is satisfied on this point, the preliminary order must be cancelled and further proceedings stayed.
Declaration and protection of possession
If one party is found to have been in possession, or is treated as having been in possession under the wrongful-dispossession proviso, the Magistrate must declare that party entitled to possession until evicted in due course of law and forbid disturbance of that possession until such lawful eviction.
Where the wrongful-dispossession proviso applies, the Magistrate may also restore the dispossessed party to possession.
Death of a party and legal representatives
If a party dies during the proceeding, the Magistrate may bring the legal representative on record and continue the inquiry. If there is a dispute about who is the legal representative for the proceeding, all persons claiming to represent the deceased are to be made parties.
Perishable crops or produce
Where crops or other produce involved in the dispute are subject to speedy and natural decay, the Magistrate may order proper custody or sale. After the inquiry, the Magistrate may make an appropriate order concerning the property or sale proceeds.
Witness summons and documents
On the application of either party, the Magistrate may at any stage summon a witness to attend or to produce a document or thing.
Section 164 does not exclude Section 126 powers
Sub-section (10) expressly provides that Section 164 does not derogate from the Magistrate's power to proceed under Section 126 BNSS. The two provisions therefore operate within their respective statutory purposes.
Relationship with Sections 165 to 167 BNSS
Section 165 BNSS deals with attachment of the subject of dispute and appointment of a receiver in the situations specified there. Section 166 BNSS concerns disputes regarding rights of use of land or water, while Section 167 BNSS addresses local inquiry.
Practical points under Section 164
- The dispute must concern land, water, boundaries or property included within the statutory definition.
- The Magistrate must record grounds showing why the dispute is likely to cause a breach of peace.
- The inquiry focuses on actual possession rather than title.
- Recent forcible and wrongful dispossession can be treated as continued possession within the statutory period.
- Possession declared under the section continues until lawful eviction in due course of law.
- The preliminary and final orders must be served and published as required.
- Civil rights and title may still require determination before the competent civil forum.
Official legal sources
The official text of the Bharatiya Nagarik Suraksha Sanhita, 2023 is available through India Code and the Ministry of Home Affairs. These official sources should be preferred for the current statutory text and commencement information.
This page provides general legal information. In an actual dispute, the preliminary order, police report or other information, evidence of possession, date and nature of any dispossession, service and publication, and relevant judicial decisions should be examined.