The Lucknow Bench of the High Court at Allahabad has affirmed that individuals in actual possession of a property cannot be dispossessed through proceedings under Sections 164 and 165 of the Bhartiya Nagrik Suraksha Sanhita (BNSS) except in accordance with the law by a court order. Justice Brij Raj Singh held that while the state is obligated to protect parties and maintain law and order, summary proceedings for attachment are not a substitute for legal eviction processes when possession is admitted.
Background
The case, Indu Tandon Vs. State Of U.P. and Others, arose from an application filed under Section 482 of the BNSS. The applicant, Indu Tandon, an elderly widow, challenged an order dated November 1, 2025, passed by the Additional Sessions Judge, Gonda (Revisional Court). The Revisional Court had set aside a prior order from the City Magistrate, Gonda, which had attached a shop situated in Mohalla Golaganj under Section 164 of the BNSS.
The applicant claimed ownership of the premises through her late husband, Narain Kishore Tandon, who had held the property since 1946. She alleged that the opposite parties (Dileep Soni and another) were illegally attempting to encroach upon a room for a shop, taking advantage of her age and illness. Conversely, the opposite parties claimed to be long-term tenants of the late Mr. Tandon, running a jewellery shop at the site.
Arguments of the Parties
Counsel for the applicant argued that the City Magistrate’s attachment order was justified due to a “dispute regarding possession” and “tension” reported by the police, which suggested an “unpleasant incident” might occur. They relied on the judgment in Pawan Singhania v. State of U.P. (2023), contending that proceedings under Section 164 BNSS (akin to Section 145 CrPC) should not be dropped merely because a civil suit is pending, as the Magistrate’s primary duty is to preserve peace.
Ms. Saima Khan, representing the opposite parties, argued that her clients were admitted tenants in possession of the shop, evidenced by electricity bills and a police report. She submitted that once possession is admitted, the landlord must file a suit for eviction rather than invoking Sections 164/165 BNSS. She cited Mahabirji Mandir Committee v. State of U.P. (1992) and Virendra Kumar v. State of U.P. (2002) to support the claim that Magistrate jurisdiction is limited to cases where actual possession is in dispute.
Court’s Analysis and Observations
Upon perusing the records and the police report dated August 3, 2024, the High Court observed that the opposite parties were indeed claiming tenancy and were in actual possession of the shop. The Court noted:
“The State Authority has to protect the parties but if actual possession is there with answering-opposite party nos.2 and 3, they cannot be dispossessed by proceeding under Sections 164/165 BNSS except in accordance with law by the order of Court.”
The Court emphasized the principles laid down in Mahabirji Mandir Committee, which stated that for the initiation of such proceedings, “it is necessary that both the parties must disagree on the question of actual possession.” If one party admits the other’s possession, the proper course for the Magistrate is to take action under preventive sections like 107 or 116 BNSS (formerly CrPC) rather than attachment.
The Decision
The High Court found no illegality in the Revisional Court’s order. Justice Brij Raj Singh concluded that the Revisional Court had “rightly set aside the order passed by the City Magistrate.” The application was rejected, thereby affirming that the occupants could not be dispossessed through the summary attachment procedure under the BNSS.
The Court clarified that its observations were applicable solely for the disposal of this specific application and should not influence future proceedings by any other authority.
Case Details
- Case Name: Indu Tandon Vs. State Of U.P. Thru. Prin. Secy. Home Lko. And 2 Others
- Case Number: APPLICATION U/S 482 No. 10324 of 2025
- Bench: Justice Brij Raj Singh
- Date: April 2, 2026
