Introduction
Land and water disputes are among the most frequent triggers of public unrest in India. To prevent such conflicts from turning violent, Section 164 of the Bharatiya Nagarik Suraksha Sanhita (BNSS)—which replaces the old Section 145 of the Criminal Procedure Code (CrPC)—empowers an Executive Magistrate to step in quickly.
This provision provides a summary legal process to determine which party was in actual possession of disputed land or water and to maintain peace until ownership is decided by a civil court. Section 164 BNSS is therefore a preventive measure, not a mechanism to decide property title.
What Section 164 BNSS Covers
Section 164 BNSS authorizes the Executive Magistrate to act when a property dispute threatens to cause a breach of peace within their jurisdiction. The focus is on identifying who was in possession, not who owns the property.
The law applies to disputes relating to land or water, a term defined broadly to include:
Buildings and houses
Markets and fisheries
Agricultural land and crops
Produce or profits from land
Rents and benefits derived from property
This wide scope ensures that any quarrel over immovable property that could disturb public order falls under the section.
When Proceedings Begin under Section 164 BNSS
An Executive Magistrate may initiate proceedings in two situations:
Based on a Police Report: when the police inform that a land or water dispute is likely to cause a breach of peace.
Based on Other Credible Information: when reliable evidence or complaints from any source show that such a dispute exists.
Once the Magistrate is satisfied that the information is genuine and that the dispute could disturb public order, the formal process begins.
Step 1 – Issuing the Initial Order
The Magistrate issues a written order explaining the grounds for their satisfaction. This order calls upon all concerned parties to:
Appear in person or through an advocate on a specified date; and
Submit written statements describing their respective claims regarding actual possession of the disputed property.
This order is the foundation of the proceeding and marks the beginning of the inquiry under Section 164 BNSS.
Step 2 – Serving and Publishing the Order
The order must be served on the parties in the same way as a legal summons. In addition, one copy is to be published at a conspicuous place near the disputed property—such as a wall, fence, or tree—so that anyone interested or affected is made aware of the proceedings.
This requirement ensures transparency and helps prevent one-sided claims.
Step 3 – Inquiry into Actual Possession
After issuing the order, the Magistrate conducts an inquiry to determine who was in actual possession at the time the order was made. The inquiry includes:
Examining the written statements of the parties
Hearing oral arguments and witness testimonies
Reviewing documentary evidence like rent receipts, photographs, or affidavits
Taking any additional evidence deemed necessary
The inquiry focuses strictly on possession. The Magistrate does not decide ownership, title, or long-term rights. Those matters belong exclusively to civil courts.
The Proviso on Forcible Dispossession
Section 164 BNSS contains an important protection against misuse. If the Magistrate finds that one party was forcibly and wrongfully dispossessed—either within two months before the police report or after it but before the initial order—then that party may be treated as if still in possession on the date of the order.
This rule prevents parties from creating false possession through illegal eviction or coercion just to gain an advantage in the case.
Step 4 – The Final Order
After examining all evidence, the Magistrate passes a final order declaring which party is in possession. The order:
Recognizes the rightful possessor for the purpose of maintaining peace;
Forbids any interference or disturbance with that possession; and
Restores possession to anyone found to have been wrongfully dispossessed.
The order remains valid until a civil court determines ownership or directs eviction through due legal process. The losing party cannot reclaim possession forcibly; they must file a civil suit if they wish to challenge ownership.
Step 5 – Cancellation of Proceedings
If, during the inquiry, it appears that there is no longer a threat to peace or that the dispute has ceased, the Magistrate may cancel the order and terminate the proceedings. This ensures that Section 164 BNSS is used only in cases where there is a real risk of disturbance.
Additional Provisions under Section 164 BNSS
The section contains several auxiliary clauses that support the main procedure:
Death of a Party: If a party dies during the inquiry, proceedings continue with their legal representatives so that the process does not lapse.
Perishable Property: When the subject includes perishable items such as crops or produce, the Magistrate may order custody, preservation, or sale of those goods, holding the proceeds until the case ends.
Power to Summon Witnesses: The Magistrate can summon witnesses or require documents necessary to determine actual possession.
These powers give the Executive Magistrate flexibility to maintain order and protect property during the inquiry.
Difference Between Section 164 BNSS and a Civil Suit
Although both concern property disputes, Section 164 BNSS and a civil suit are fundamentally different. Section 164 BNSS is a preventive and temporary measure designed to preserve peace and maintain the status quo. It identifies who was in possession at a given time so that violence can be avoided.
A civil suit, by contrast, is a detailed legal proceeding aimed at deciding ownership or title. It involves filing of plaints, examination of evidence, and final decrees that determine legal rights permanently.
Therefore, Section 164 BNSS is not a substitute for civil litigation but a tool to ensure public safety while civil disputes proceed in court.
Practical Illustration
Imagine two villagers, Arjun and Bhaskar, disputing over a small plot of farmland. Both claim to be cultivating it. Their arguments grow tense, and the police fear a possible clash.
The police report the situation to the local Executive Magistrate, who issues an order under Section 164 BNSS. Both parties appear and file written statements. Evidence shows that Arjun was farming the land for months before Bhaskar attempted to take it over by force.
After inquiry, the Magistrate declares Arjun in possession and forbids Bhaskar from interference until a civil court rules on ownership. The swift action prevents violence, demonstrating how BNSS Section 164 functions as an effective preventive law.
Importance of Section 164 BNSS in Maintaining Public Order
Section 164 BNSS plays a crucial role in India’s preventive justice framework. Its importance lies in:
Preserving peace: by addressing disputes before they escalate into violence.
Providing speedy relief: without the delays of civil litigation.
Protecting possession: of parties who lawfully occupy land or property.
Ensuring fairness: by preventing wrongful dispossession through force.
Supporting local administration: by giving Magistrates clear powers to manage land and water disputes.
Through these functions, the provision balances individual property rights with society’s need for peace and order.
Also read: BNSS Section 154
Frequently Asked Questions
1. Does Section 164 BNSS decide ownership of property?
No. It only determines who was in actual possession at the time of dispute. Ownership or title must be decided by a civil court.
2. Can an order under Section 164 BNSS be challenged?
There is no direct appeal. However, the aggrieved party can approach the civil court to prove ownership and seek eviction through due process.
3. Is Section 164 BNSS the same as Section 145 CrPC?
Yes. Section 164 BNSS replaces Section 145 CrPC with updated language under the new Bharatiya Nagarik Suraksha Sanhita, 2023.
4. What if the property is perishable, like crops?
The Magistrate may order its protection or sale and hold the proceeds until the inquiry concludes.
5. Can police directly decide possession?
No. Police only submit the report; it is the Executive Magistrate who conducts the proceedings and passes the order.
Conclusion
Section 164 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is a vital preventive measure that empowers Executive Magistrates to maintain peace in disputes concerning land or water. By focusing solely on actual possession and not on ownership, it ensures that law and order are preserved while giving parties time to seek proper remedies in civil courts.
Its strength lies in being swift, neutral, and preventive, freezing volatile situations before they escalate. In a country where property disputes often become flashpoints for violence, Section 164 BNSS stands as a key legal tool to protect both citizens and public tranquility.
