PART IV
Removal of public nuisances
1. CONDITIONAL ORDER FOR REMOVAL OF NUISANCE AND CONSEQUENTIAL STEPS
Section 152 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), replacing Section 133 of the former Code of Criminal Procedure (CrPC), provides Executive Magistrates with urgent, summary powers to prevent public nuisances and safeguard community health, safety, and physical comfort.
Designed to deal with emergent situations where delay could cause irreparable harm, the provision allows Magistrates to issue conditional orders directing responsible parties to remove public obstructions, halt hazardous construction, regulate noxious trades, secure dangerous wells, or manage collapsing structures and dangerous animals, or otherwise show cause why the order should not be enforced.
Because these proceedings are preventive and quasi-civil in nature, orders issued under Section 152 BNSS are temporary remedies that cannot be challenged in civil court, serving to maintain peace and tranquility until underlying civil rights are formally declared.
While the law strictly targets public nuisances affecting a numerically sufficient section of the population—leaving long-standing disputes to civil courts—it retains flexibility by allowing partial regulation of trades rather than total bans, applying structural safety protections even to single households, and operating alongside specific environmental legislation.
(2) Service or notification of order.
Under Section 153(1) and (2) of the Bharatiya Nagarik Suraksha Sanhita (BNSS), the law lays down a specific procedure for serving or notifying conditional orders regarding public nuisances.
Whenever practicable, the order must be directly served on the individual against whom it is issued in the standard manner prescribed for serving a summons.
If direct personal service cannot be achieved, the order must instead be notified via a public proclamation issued according to rules framed by the State Government, and a copy must be physically posted at the most suitable and visible place to ensure the person receives proper notice.
(3) Person to whom order is addressed to obey the order or to show cause.
Writing
Under Section 154 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a person served with a conditional order regarding a public nuisance is bound either to comply with the directive within the stipulated time and manner or to appear before the Magistrate to show cause against its enforcement, with the provision that such court appearances or hearings may be conducted electronically via audio-video conferencing.
Should the individual fail to take either course of action—neither obeying the order nor showing cause—Section 155 BNSS provides that the conditional order automatically becomes absolute, and the defaulting party faces criminal prosecution and punishment under Section 223 of the Bharatiya Nyaya Sanhita, 2023.
2. PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED
Section 156 BNSS (formerly Section 137 CrPC) prescribes a mandatory procedure when a person challenged under a conditional nuisance order (Section 152 BNSS) denies the existence of a public right over a way, river, channel, or public space.
Upon appearance, the Magistrate must explicitly question the party regarding the public right; if denied, a preliminary inquiry is conducted solely to ascertain whether reliable evidence supports this claim.
If credible evidence of a private right or bona fide property dispute is shown, the Magistrate is obligated under Section 156(2) BNSS to stay all executive proceedings, referring the dispute to a competent civil court for final determination.
Conversely, if no reliable evidence supports the denial, or if the individual fails to raise the denial initially, they forfeit the right to assert it in subsequent proceedings, allowing the Magistrate to proceed under Section 157 BNSS to evaluate whether the conditional order should be made final.
3. PROCEDURE WHERE THE PERSON AGAINST WHOM AN ORDER IS MADE UNDER SECTION 152 BNSS APPEARS TO SHOW CAUSE
Section 157 BNSS applies when a person appears before an Executive Magistrate to show cause against a conditional order issued under Section 152 BNSS.
The Magistrate must conduct a formal inquiry by taking evidence in the same manner as a summons case.
The Magistrate is legally bound to record actual evidence rather than relying merely on a personal site inspection or submitted affidavits.
If the Magistrate finds upon evaluating the evidence that the order—either in its original form or with necessary modifications—is reasonable and proper, the order is made absolute; otherwise, all proceedings are dropped.
To ensure speedy resolution, the entire proceeding under Section 157 BNSS must ordinarily be completed within 90 days, with a maximum extendable limit of 120 days provided the Magistrate documents written reasons for the delay.
4. LOCAL INVESTIGATION AND EXPERT EVIDENCE
Sections 158 and 159 BNSS empower an Executive Magistrate conducting an inquiry under Section 156 or 157 BNSS to gather facts through local investigations and expert testimonies.
The Magistrate may order a local investigation by appointing a suitable individual, issuing appropriate written guidelines, and specifying which party must pay for the costs involved.
Upon completion, the investigator’s written report is admissible and may be read directly as evidence in the ongoing proceedings.
Additionally, the Magistrate is empowered to summon and examine subject-matter experts to assist the inquiry, while retaining the authority to determine who shall bear the expenses associated with summoning and examining such experts.
5. PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCES
Section 160 BNSS applies once a public nuisance order is declared absolute under Section 155 or Section 157 BNSS.
The Magistrate must serve formal notice on the defaulting party, fixing a compliance deadline and warning them of criminal penalties under Section 223 of the Bharatiya Nyaya Sanhita, 2023 for disobedience.
If the individual fails to carry out the specified action within the prescribed timeframe, Section 160(2) BNSS empowers the Magistrate to cause the act to be executed independently and recover all operational costs through the sale of removed structures or goods, or via the seizure and sale of the person’s movable assets—even if located outside the local jurisdiction, provided the order is endorsed by the local Magistrate of that area.
To ensure swift execution, Section 160(3) BNSS grants statutory immunity against civil suits for acts performed in good faith, while judicial precedents clarify that the issuing court cannot self-review its order or modify it without prior notice to the affected parties.
6. INJUNCTION PENDING INQUIRY
Section 161 BNSS grants an Executive Magistrate emergency powers to issue an immediate injunction against a party during an ongoing public nuisance inquiry if urgent action is required to avert imminent, serious danger or injury to the public.
Should the individual fail to comply with the injunction immediately, Section 161(2) BNSS grants the Magistrate direct authority to deploy whatever means are necessary to neutralize the threat.
Although the provision does not expressly mandate prior notice before issuing such an injunction, principles of natural justice and fair hearing dictate that the affected person should ordinarily be granted an opportunity to present their case prior to enforcement.
Furthermore, Section 161(3) BNSS provides statutory protection to Magistrates against civil suits for any actions executed in good faith under these emergency powers.
7. MAGISTRATE MAY PROHIBIT REPETITION OR CONTINUANCE OF PUBLIC NUISANCE
Section 162 BNSS vests designated authorities—including District Magistrates, Sub-Divisional Magistrates, empowered Executive Magistrates, and specially authorized Deputy Commissioners of Police—with the legal power to order an individual to cease repeating or continuing a public nuisance.
This power applies to public nuisances as defined under the Bharatiya Nyaya Sanhita, 2023, or any special or local law, provided that the underlying matter has already been formally adjudicated by a court of competent jurisdiction.
If an individual willfully disobeys this formal directive by persisting in or renewing the public nuisance, they are subject to statutory criminal penalties under Section 293 of the Bharatiya Nyaya Sanhita, 2023.
PART V
Urgent cases of apprehended danger or nuisance
Section 163 BNSS—which replaces Section 144 CrPC—grants omnibus preventive authority to Senior Executive Magistrates, including District Magistrates and Sub-Divisional Magistrates, to issue written orders in urgent situations involving apprehended danger, public nuisance, or potential riots and affrays.
The primary justification for invoking this section is extreme urgency, requiring a temporary and written prohibitory directive that orders individuals to abstain from specific acts or manage property to avert immediate threats to public safety, life, or tranquillity.
Orders can be directed toward specific individuals, localized residents, or the general public visiting a particular area, and while notice is ordinarily required, an ex parte order may be issued during emergencies if the Magistrate explicitly records written reasons showing application of mind.
Statutorily, a Magistrate’s order remains effective for no more than two months, though the State Government holds the power to extend it by notification up to a maximum of six months in grave safety scenarios.
Any aggrieved party retains the right to apply for rescission or modification of the order before the Magistrate or State Government—where a mandatory hearing and written justification for any rejection are required—or seek direct judicial review before the High Court.
PART VI
Disputes as to immovable property
1. PREVENTIVE MEASURES IN RESPECT OF LAND OR WATER DISPUTES WHICH ARE LIKELY TO CAUSE A BREACH OF THE PEACE
Sections 164 to 167 BNSS—replacing Section 145 CrPC—grant Executive Magistrates preventive authority to intervene in land and water disputes to avert imminent breaches of public peace.
Upon receiving a police report or reliable information, the Magistrate issues a reasoned preliminary order requiring disputing parties to submit written claims regarding actual physical possession—encompassing land, buildings, fisheries, crops, and rental income—and serves this notice personally and by public posting near the property.
The inquiry is strictly limited to determining factual possession rather than legal ownership rights; however, under the proviso to Section 164(4) BNSS, any party wrongfully and forcibly dispossessed within two months prior to the proceedings can be deemed in actual possession and restored to the property.
Should the risk of peace disruption cease, the Magistrate must immediately drop the proceedings.
Conversely, if possession is established, a final reasoned order is passed protecting that party’s possession against interference until a civil court ruled otherwise, with ancillary provisions allowing for the substitution of legal heirs, sale of perishable property, summoning of witnesses, and requirement of peace bonds under Section 126 BNSS.
2. ATTACHMENT OF THE PROPERTY IN DISPUTE AND APPOINTMENT OF A RECEIVER
(1) Attachment.
Section 165(1) BNSS—formerly Section 146(1) CrPC—empowers an Executive Magistrate who has passed a preliminary order under Section 164(1) BNSS to attach the property in dispute if an emergency exists, if neither party was in possession, or if the Magistrate cannot ascertain who held actual possession.
As established in Mathuralal v. Bhanwarlal, attaching property during an emergency does not terminate the Magistrate’s jurisdiction; rather, Sections 164 and 165 BNSS form a unified procedure requiring the Magistrate to continue the inquiry into actual possession unless the threat to public peace subsides.
While attached, the property is held custodia legis (in the custody of the law), allowing an aggrieved party in subsequent court proceedings to seek a declaration of legal entitlement without needing to claim recovery of physical possession (Shanti Kumar Panda v. Shakuntala Devi).
Furthermore, to avoid duplicate litigation, criminal courts must not initiate proceedings under Section 164 BNSS if a civil suit is already pending, and any final order passed by the Magistrate remains strictly temporary and interlocutory, serving only as a temporary measure until a competent court conclusively adjudicates the parties’ title and possessory rights.
(2) Composite order can be passed.
A court or Executive Magistrate can pass a composite order that combines both the preliminary order under Section 164(1) BNSS [formerly Section 145(1) CrPC] and the attachment of disputed property under Section 165(1) BNSS [formerly Section 146(1) CrPC].
However, for such a composite order to be legally valid, three essential conditions must be strictly satisfied:
the preliminary order and the attachment order must be drawn separately;
the preliminary order under Section 164(1) BNSS must chronologically precede the attachment order under Section 165(1) BNSS,
both orders must explicitly demonstrate on record that the distinct statutory requirements and grounds mandated by each section have been independently satisfied.
(3) Appointment of Receiver.
When an Executive Magistrate attaches property under Section 165(1) of the Bharatiya Nagarik Suraksha Sanhita (BNSS) [formerly Section 146(1) CrPC], they may appoint a receiver to manage the property with the full powers of a CPC-appointed receiver under their control, provided a civil court has not already appointed one.
If a civil court later appoints its own receiver, the Magistrate is legally required to order their receiver to hand over possession to the civil court’s receiver and then discharge the original receiver, as civil court proceedings supersede executive management.
Additionally, while the High Court retains inherent jurisdiction under Section 528 BNSS [formerly Section 482 CrPC] to appoint a receiver, it will not do so if possession has already been restored to the successful party and the threat to public peace has passed.
Importantly, because orders attaching property and appointing a receiver substantially affect the rights of the parties, they are treated as orders of moment rather than non-appealable interlocutory orders, making them subject to revision petitions.
3. PREVENTIVE MEASURES IN RESPECT OF DISPUTES CONCERNING RIGHT OF USE OF LAND OR WATER
Under Section 166 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), Executive Magistrates are granted preventive authority to address land or water disputes concerning the alleged right of use—such as easementary rights, pathways, or water drawing—where there exists an apprehension of a breach of public peace.
Upon being satisfied through a police report or other information, the Magistrate issues a written preliminary order setting forth the grounds and directing the parties to submit written statements and evidence regarding their right to use the property.
If the Magistrate finds that such a right exists, a protective order may be issued prohibiting interference and directing the removal of any obstructions.
However, protection is contingent upon recency: year-round rights must have been exercised within three months prior to the report, while seasonal or occasional rights must have been exercised during the last preceding season or occasion.
Additionally, Section 166(4) BNSS provides procedural flexibility by allowing the Magistrate, after recording reasons, to seamlessly convert proceedings between Section 164 BNSS (possession disputes) and Section 166 BNSS (use disputes) as the true nature of the controversy becomes clear.
4. LOCAL INQUIRY
Under Section 167 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), a District Magistrate or Sub-Divisional Magistrate handling property or land usage disputes under Sections 164, 165, or 166 BNSS may depute a subordinate Magistrate to perform a local inquiry, providing necessary written guidance and determining who pays the initial costs.
Once completed, the report prepared by the deputed Magistrate holds formal evidentiary value and can be read directly as evidence in the case proceedings.
Furthermore, upon reaching a final decision, the presiding Magistrate possesses the discretion to allocate overall case costs—including reasonable witness expenses and advocates’ fees—ordering them to be paid by the responsible party in full, in part, or in designated proportions.