Section 166 BNSS: Dispute concerning right of use of land or water
Section 166 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides a preventive procedure where a dispute likely to cause a breach of the peace concerns an alleged right of user of land or water, whether claimed as an easement or otherwise. The provision enables an Executive Magistrate to inquire into the claimed right and, where the statutory conditions are met, protect its exercise from interference.
Section 166 BNSS - statutory text
166. (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, 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.
Explanation.- For the purposes of this sub-section, the expression "land or water" has the meaning given to it in sub-section (2) of section 164.
(2) The Magistrate shall peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 164 shall, so far as may be, apply in the case of such inquiry.
(3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right:
Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt.
(4) When in any proceedings commenced under sub-section (1) of section 164 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1), and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 164, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 164.
What Section 166 BNSS means
Section 166 deals with disputes about the exercise of a claimed right over land or water rather than disputes about who is in actual possession of the property. Typical examples may include a claimed right of way, access, passage, use of water, or another easementary or similar right.
| Issue | Section 166 rule |
|---|---|
| Trigger | Dispute regarding an alleged right of user of land or water likely to cause breach of peace |
| Authority | Executive Magistrate having local jurisdiction |
| Nature of right | May be claimed as an easement or otherwise |
| Inquiry | Statements, hearing and evidence concerning existence of the claimed right |
| Protective order | Magistrate may prohibit interference and, in a proper case, order removal of obstruction |
| Recent exercise requirement | Three-month rule for rights exercisable throughout the year; last-season or last-occasion rule for seasonal or occasional rights |
Meaning of "right of user"
A right of user is a claimed entitlement to use land or water in a particular manner without necessarily claiming possession or ownership of the property itself. Section 166 expressly covers rights claimed as easements as well as other rights of user.
The expression "land or water" has the same meaning as in Section 164(2) BNSS, which includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of such property.
When can proceedings under Section 166 begin?
The Executive Magistrate must be satisfied from a police report or other information that a dispute exists within his local jurisdiction regarding an alleged right of user of land or water and that the dispute is likely to cause a breach of the peace.
The Magistrate must then make a written order stating the grounds of his satisfaction and require the parties to attend personally or through an advocate on a specified date and time and submit written statements setting out their respective claims.
Inquiry into existence of the claimed right
The Magistrate examines the written statements, hears the parties, receives their evidence, considers its effect and may take further evidence where necessary. If possible, the Magistrate then decides whether the alleged right exists.
Section 164 applies, so far as may be, to the conduct of this inquiry.
Order protecting the exercise of the right
If the Magistrate finds that the right exists, he may prohibit interference with its exercise. In an appropriate case, the order may also direct removal of an obstruction that interferes with the exercise of the right.
Three-month rule for rights exercisable throughout the year
Where the claimed right can be exercised at all times of the year, the Magistrate cannot make the protective order under sub-section (3) unless the right was exercised within the three months immediately preceding receipt of the police report or other information that led to the inquiry.
Seasonal or occasional rights
Where the claimed right can be exercised only during particular seasons or on particular occasions, the protective order cannot be made unless the right was exercised during the last such season or on the last such occasion before receipt of the information that led to the inquiry.
Section 166 compared with Section 164
Section 164 BNSS primarily concerns disputes about actual possession of land or water, while Section 166 concerns an alleged right to use land or water.
If a proceeding begins under Section 164 but the Magistrate later finds that the real dispute concerns a right of user, he may record reasons and continue under Section 166. Conversely, if a proceeding begins under Section 166 but is found to concern possession, the Magistrate may record reasons and continue it under Section 164.
Relationship with Sections 165 and 167 BNSS
Section 165 BNSS deals with attachment of the subject of a possession dispute and appointment of a receiver in specified circumstances. Section 167 BNSS concerns local inquiry in proceedings under this group of provisions.
Practical points under Section 166
- The dispute must concern an alleged right of user of land or water and must be likely to cause a breach of peace.
- The Magistrate must state the grounds of satisfaction in a written order.
- The inquiry focuses on whether the alleged right exists.
- The right may be claimed as an easement or otherwise.
- Where the right is exercisable throughout the year, recent exercise within the statutory three-month period is required.
- For seasonal or occasional rights, exercise during the last relevant season or occasion is required.
- The Magistrate may prohibit interference and may, in a proper case, direct removal of an obstruction.
- Proceedings may be converted between Sections 164 and 166 after reasons are recorded.
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 nature of the claimed right, evidence of its exercise, the relevant dates, the Magistrate's recorded reasons, any obstruction and applicable civil rights or easement law should also be examined.