Issuance of a preliminary order under Section 164 BNSS is a mandatory jurisdictional prerequisite.

The Petitioner (landowner) filed complaints in January 2025 alleging trespass by Respondent Nos. 1 and 2 (Respondents) into House No. 793, situated on the Petitioner’s property at Survey No. 171/6, Morjim

On 29/01/2025, the Executive Magistrate issued a notice (not a formal order) under Section 164 of the Bhartiya Nagarik Suraksha Sanhita (BNSS)

On 07/04/2025, the Magistrate held the Petitioner was in possession based primarily on land ownership records

The Respondents, claiming Mundkarship (protected tenancy) and continuous residence since their grandfather's time, challenged this in revision

The Additional Sessions Judge quashed the Magistrate’s order, finding it was passed without a mandatory preliminary order and ignored the Respondents' evidence of actual possession

1. Whether the absence of a preliminary order under Section 164(1) BNSS vitiates the proceedings as a jurisdictional defect or is a mere curable irregularity under Section 511 BNSS

2. Whether the Magistrate's order, based on title/ownership rather than actual possession, was legally sustainable

3. Whether the Revisional Court exceeded its jurisdiction under Section 438 BNSS by re-appreciating evidence

The court applied Section 164 (corresponding to Section 145 CrPC) and Section 507(j) of the BNSS

A written preliminary order recording objective satisfaction is a sine qua non for assuming jurisdiction under Section 164.

Section 507(j) BNSS explicitly states that orders made under Part D of Chapter XI (which include Section 164) by a person not empowered in that behalf are void

The court also applied K. Ravi v. State of Tamil Nadu regarding the scope of revisional jurisdiction under Section 438 BNSS

The Court held that a preliminary order is "basic" to Section 164 proceedings because it defines the date on which possession must be determined and provides the grounds for parties to contest

The 29/01/2025 'notice' did not constitute a preliminary order as it lacked grounds for satisfaction

The Court rejected the Petitioner's reliance on V.K. Rao, ruling it was impliedly overruled by Mathuralal, which clarifies that jurisdiction is only assumed once a preliminary order is drawn

Under Section 507(j) BNSS, failure to follow this mandatory procedure results in void proceedings, not a "mere irregularity" curable by Section 511

On facts, the Magistrate erred by deciding based on title (Form I & XIV) rather than actual possession

The Revisional Court was justified in re-examining the record as the Magistrate ignored substantial evidence—including utility bills, panchayat records, and an FIR—showing the Respondents’ long-standing occupation of House No. 793

The Court held that the Magistrate's order was perverse for ignoring material evidence of possession and focusing on title

The Additional Sessions Judge's order quashing the Magistrate's decision was upheld

The Petitioner was ordered to pay ₹10,000 in costs, and the Police Inspector was directed to restore possession of House No. 793 to the Respondents within two weeks