Model: preliminary order under s.164 BNSS

The bread-and-butter RDO case: two parties, one survey number, harvest approaching, and an SHO reporting that blood will flow. Section 164 exists so that the criminal law’s peace-keeping arm can freeze the ground while the civil courts sort out title — and the preliminary order is the instrument that does the freezing. It is also the document that defines, for the whole case, what you are deciding and what you are not.

When you need this

A police report (or a credible petition, or your own tour observation) discloses a dispute concerning land or water, or the boundaries or crops thereof, and the dispute is likely to cause a breach of the peace — rival claimants ploughing the same field, a tank water-turn fight, two factions racing to harvest a standing crop, a fence going up and a crowd gathering. If either ingredient is missing — no dispute about land/water, or no live danger to the peace — the section is not available, and the file should say why both exist before this order issues.

The model

BEFORE THE SUB-DIVISIONAL MAGISTRATE, [NAME OF DIVISION] DIVISION
Present: [NAME OF OFFICER], Deputy Collector and Sub-Divisional Magistrate

M.C. No. [CASE NO.]/[YEAR]
(Proceedings under section 164 of the BNSS, 2023)

PRELIMINARY ORDER UNDER SUB-SECTION (1) OF SECTION 164, BNSS, 2023

Party No. 1: [NAME], S/o [FATHER'S NAME], R/o [NAME OF VILLAGE],
             [MANDAL] mandal, and [NUMBER] others (as per Annexure).
Party No. 2: [NAME], S/o [FATHER'S NAME], R/o [NAME OF VILLAGE],
             [MANDAL] mandal, and [NUMBER] others (as per Annexure).

Subject of dispute: The land in Sy.No. [SY.NO.] of [NAME OF VILLAGE]
village, [MANDAL] mandal, admeasuring Ac. [EXTENT], bounded as follows:
North — [BOUNDARY]; South — [BOUNDARY]; East — [BOUNDARY];
West — [BOUNDARY]; together with the standing crop thereon.

WHEREAS the Station House Officer, [NAME OF POLICE STATION] P.S., in his
report dated [DATE], has reported that a dispute exists between the
above-named parties concerning the possession and enjoyment of the said
land; that on [DATE] Party No. 1 attempted to plough the land and was
obstructed by Party No. 2 with a mob of about [NUMBER] persons; that both
parties are mobilising men and are determined to take the standing crop
by force; and that Cr.No. [CRIME NO.]/[YEAR] of [POLICE STATION] P.S.
stands registered in respect of the incident of [DATE];

AND WHEREAS from the said report and the enquiry report of the Tahsildar,
[MANDAL], dated [DATE], I am satisfied that a dispute likely to cause a
breach of the peace exists between the said parties concerning the said
land situated within my local jurisdiction — the grounds of my
satisfaction being the reported incident of [DATE], the registration of
the crime aforesaid, the imminence of the harvest, and the report that
both parties are assembling supporters;

NOW, THEREFORE, in exercise of the powers conferred by sub-section (1) of
section 164 of the BNSS, 2023, I hereby order:

1. The parties above-named shall attend my office at [PLACE], in person
   or by advocate, on [DATE] at [TIME]; and

2. Each party shall on that date file a written statement of its
   respective claim as respects the fact of ACTUAL POSSESSION of the
   subject of dispute as on the date of this order, together with the
   documents and affidavits relied on.

3. The parties are informed that this proceeding concerns the fact of
   possession only, and not title; and that a party forcibly and
   wrongfully dispossessed within two months next before the date of the
   police report first above-mentioned may be treated as if in possession
   on the date of this order.

4. Copies of this order shall be served on the parties as required by
   sub-section (3) of section 164, and a copy shall be affixed to or near
   the subject of dispute in a conspicuous place.

Given under my hand and the seal of this office, this [DATE].

                                             [SIGNATURE]
                                             ([NAME OF OFFICER])
                                             Sub-Divisional Magistrate,
                                             [NAME OF DIVISION]
Copy to: The Station House Officer, [NAME OF POLICE STATION] P.S.; the
Tahsildar, [MANDAL], with a direction to watch the situation and report
any attempt to alter the state of the property; case file.

Anatomy — why each part is there

1. The array of parties. Section 164 cases are between defined parties, and the final order will bind them and declare one of them entitled to possession until eviction in due course of law. Faction cases involve dozens; name the principals and annex the rest, or the final order will protect and bind nobody in particular.
2. The description of the subject of dispute. Survey number, village, extent, boundaries, and the crop where the crop is the flashpoint. The final order operates on this land and nothing else; a loose description (“the disputed land of the parties”) produces an unexecutable order and endless contempt-of-what disputes. Where the fight is over a right of user — a pathway, an irrigation turn — the case belongs under s.166, not here, and the description should make plain which it is.
3. The police-report recital. The section is triggered by a police report or other information; recite whichever you actually have, by date. The recital of the specific incident, with its crime number, is what shows the dispute is not a stale civil quarrel dressed up for a magistrate but a live public-order problem.
4. The satisfaction recital — with grounds. The statutory hinge. Sub-section (1) requires the Magistrate to be satisfied that a dispute likely to cause a breach of the peace exists, and to make an order in writing stating the grounds of his being so satisfied. The specimen therefore does not say “I am satisfied” and stop; it lists the grounds — incident, crime number, imminent harvest, mobilisation. Revision courts quash s.164 orders on this point more than any other: no grounds, no jurisdiction.
5. The operative call for written statements on actual possession. The whole architecture of s.164 flows from this paragraph: parties attend, file written statements as respects the fact of actual possession on the date of the order, then you peruse the statements, take such evidence as they produce, and decide which party was in possession — not which party owns. The final order then declares that party entitled to possession until evicted in due course of law and forbids disturbance.
6. The possession-not-title caution and the two-month rule (para 3). Strictly a courtesy — the law operates whether or not the parties are told — but a wise one. It steers the written statements toward the only relevant question, and it flags the statutory fiction: a party forcibly and wrongfully dispossessed within the two months before the report may be treated as in possession, so the land-grabber who moved fast gains nothing by his speed. Reciting it also shows you know the fiction exists, which disciplines your own final order.
7. The service and affixture para. Sub-section (3) prescribes service on the parties and affixture of a copy at some conspicuous place at or near the subject of dispute. Affixture is not ceremony: it is what makes the whole village — including the supporters not named in the array — aware that the land is now under a Magistrate’s hand.
8. The copy to the Tahsildar with a watch direction. Conventional, not statutory, and invaluable: if the situation is an emergency, or if you later conclude no party was in possession, s.165 lets you attach the subject of dispute and appoint a receiver until a competent court determines the rights. The Tahsildar’s watch report is usually what tells you the moment for attachment has come — and the Tahsildar is often the receiver you appoint.

Adaptation traps

• Using s.164 to decide title. The jurisdiction is possession only, as a peace-keeping stopgap; the order is displaced once a competent civil court is seized of the dispute. A preliminary order reciting rival sale deeds and patta claims as matters to be “adjudicated” announces that you intend to exceed jurisdiction.
• No grounds in the satisfaction recital. “Whereas I am satisfied that a breach of the peace is imminent” — with nothing after it — is the standard defect in copied drafts, and fatal. The grounds go in the order itself, not just in the file.
• Freezing a one-sided grab with the wrong section. If there is no genuine dispute — one party plainly possesses and the other is simply a trespasser — the remedies are the police’s, or a s.163 order, or eviction under the land laws. Manufacturing a s.164 case gives the trespasser a litigating status he never had.
• Ignoring the emergency route. Where the harvest is days away or violence has begun, passing the preliminary order and waiting through written statements can itself cause the breach. Attachment under s.165 with a receiver — often the Tahsildar, directed to harvest the crop and hold the proceeds — is the tool the section provides for exactly that; using it needs its own recorded emergency finding.
• Letting the case become the civil suit. Months of affidavits, cross-examination and adjournments defeat the section’s purpose. The proceeding is summary; decide possession on the statements and the evidence produced, and leave the rest to the civil court where it belongs.

An illustrative skeleton for learning — always draft from the current Act, Rules and standing instructions, and have your first drafts settled by your senior.