Section 147 CrPC and Section 166 BNSS: Dispute Concerning Right of Use of Land or Water
Disputes over a pathway, access road, watercourse, drain or another claimed right to use land or water can threaten public peace. Section 166 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) empowers an Executive Magistrate to conduct a preventive inquiry and, where the law permits, prohibit interference with an existing right of use.
What does Section 166 BNSS cover?
Section 166 concerns an alleged right of user of land or water, claimed as an easement or otherwise, where the dispute is likely to cause a breach of peace. A right of user is a claimed entitlement to use land or water without necessarily having exclusive possession or ownership of it. An easement generally means a right attached to the beneficial enjoyment of one property over another property, as governed by applicable easement law.
The statutory expression land or water adopts the meaning in Section 164(2) BNSS, encompassing buildings, markets, fisheries, crops or other produce of land and rents or profits of such property. Illustrations include a disputed passage through land, use of an irrigation channel or access to water.
Section 166 BNSS: Powers and procedure of the Executive Magistrate
Subsection (1): Written preliminary order
On a police report or other information, the Executive Magistrate must be satisfied that a dispute likely to cause a breach of peace exists within local jurisdiction. The Magistrate issues a written order recording the grounds and directs concerned parties to appear personally or through an advocate at a specified time and submit written statements of their claims.
Subsection (2): Inquiry into the claimed right
The Magistrate considers written statements, hears parties, receives and evaluates evidence, may seek additional evidence, and, if possible, determines whether the asserted right exists. The procedure under Section 164 BNSS applies so far as practicable. Evidence may include records, maps, deeds, photographs, witnesses and material showing actual exercise of the right.
Subsection (3): Protection against interference
If the Magistrate finds the right exists, an order may prohibit interference with its exercise. In a proper case the Magistrate may also order removal of an obstruction, subject to the express statutory conditions described below.
Subsection (4): Conversion between proceedings
When an inquiry begun under Section 164(1) BNSS turns out to concern a right of user rather than possession, the Magistrate may record reasons and continue it under Section 166. Conversely, a Section 166 proceeding may be continued under Section 164 where the issue is properly one of possession. This is a procedural mechanism and does not itself decide title.
When can an interference-prevention order be passed?
The proviso to Section 166(3) imposes an important time-based requirement:
- Right exercisable throughout the year: it must have been exercised within the three months immediately preceding receipt of the police report or other information that initiated the inquiry.
- Seasonal or occasional right: it must have been exercised during the last relevant season or on the last relevant occasion before receipt of that information.
These are conditions for the order under subsection (3), not a general limitation period for every civil claim concerning an easement.
Difference between Section 164 and Section 166 BNSS
Section 164 BNSS (former Section 145 CrPC) addresses disputes concerning actual possession of land or water likely to cause a breach of peace. Section 166 BNSS (former Section 147 CrPC) addresses disputes over a right to use land or water, such as a pathway or water channel. These preventive proceedings are distinct from a final civil adjudication of ownership, easementary title or other substantive rights.
Practical remedies for parties
- Collect proof of the alleged use, including its frequency, duration, location and any obstruction.
- Bring a threatened breach of peace to the attention of the police or competent Executive Magistrate, with supporting information.
- File a clear written statement and relevant evidence if a proceeding is initiated.
- Where a permanent declaration of easement, injunction or other property right is required, consider the appropriate civil court proceedings. A Magistrate's preventive order does not replace a civil decree.
Historical provision: Section 147 of the Code of Criminal Procedure, 1973
Before the BNSS commenced, Section 147 CrPC governed disputes concerning the right of use of land or water. Its four subsections contained substantially the same framework:
Section 147(1): An Executive Magistrate satisfied that a dispute likely to cause a breach of peace exists regarding a claimed right of user of land or water within local jurisdiction could issue a reasoned written order requiring the parties to attend and submit their claims. The original provision used the term pleader.
Explanation: Land or water had the meaning assigned by Section 145(2) CrPC.
Section 147(2): The Magistrate examined written statements, heard parties, considered evidence and, if possible, decided whether the claimed right existed, applying Section 145 so far as applicable.
Section 147(3): If the right existed, the Magistrate could prohibit interference and, in a proper case, order removal of an obstruction, subject to the three-month or last-season/occasion requirement.
Section 147(4): Proceedings could be continued under Section 145 or Section 147, as appropriate, after recording reasons.
For the operative wording in new matters, consult Section 166 BNSS. For historical or saved proceedings, consult the applicable CrPC text and the transition provisions.
Maharashtra state amendment to former Section 147 CrPC
The original article records the Maharashtra amendment under Maharashtra Act 1 of 1978, Section 3, which substituted the opening words of Section 147(1) to refer to a Metropolitan Magistrate in Greater Bombay and an Executive Magistrate elsewhere in the State. This is retained as historical state-amendment information. Its present effect, if any, in relation to the BNSS must be assessed against the applicable state legislation, adaptations and notifications; it should not automatically be assumed to amend Section 166 BNSS.
Frequently asked questions
Is Section 147 CrPC still the current provision?
For proceedings governed by the new procedural law, the corresponding provision is Section 166 BNSS. Section 147 CrPC remains relevant to historical matters and proceedings covered by statutory savings.
Can the Magistrate order removal of a blocked pathway?
Yes, in a proper case under Section 166(3) BNSS, if the claimed right is established in the statutory inquiry and the conditions in its proviso are met.
Does the Magistrate finally decide ownership?
No. The preventive jurisdiction is directed at disputes likely to cause a breach of peace. Final adjudication of civil title and easement rights ordinarily belongs to the competent civil court.
Official legislation and reference material
- National Crime Records Bureau: BNSS statutory provisions, including Section 166
- Bureau of Police Research and Development: Bharatiya Nagarik Suraksha Sanhita, 2023 (PDF)
- NCRB: CrPC and BNSS section correspondence table
- India Code: official central legislation repository
This article is general legal information. Local amendments, notifications, case-specific facts and judicial orders may affect the appropriate remedy.