Vinitika Vij

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Critical Review of Bondu Ramaswamy vs. Bangalore Development Authority
1. Introduction
The 74th amendment to the Constitution focussed on the empowerment of the urban local
bodies (ULBs) of the Indian cities, and the Panchayats. In order to make this happen, the
amendment added section 243ZF which made it mandatory for the State Governments to look
at any law regarding municipalities and modify it in a years time, or they would be held
invalid after a year is passed. However, the Supreme Court and the Division Bench of the
High Court (both referred to as Courts together henceforth) made this provision in the
Nagarpalika Act (the 74th Constitutional Amendment) redundant in case of parastatal
authorities in charge of development of metropolitan areas by holding the Bangalore
Development Authority Act, 1976 consistent with part IX and IXA of the Constitution
(including article 243ZF) in Bondu Ramaswamy v. Bangalore Development Authority1 by
interpreting the amendment literally. This paper critically analyses the Bangalore
Development Authority (BDA) judgment in light of distribution of functions and powers
between municipalities and parastatal bodies envisioned by the Legislature. The paper aims to
analyse the flawed arguments presented in the judgement and an alternate way of interpreting
article 243ZF, regarding BDAs relation to municipalities, after rectifying the flaws.

In this case, the issue before the Supreme Court was whether the provisions of the
Bangalore

Development

Authority

Act,

in

particular

Section 15 read

with

Section 2(c) dealing with the power of the BDA to draw up schemes for development for
Bangalore Metropolitan Area became impliedly repealed, by virtue of Parts IX and IX(A) of
the Constitution inserted by the 73rd and 74th Amendments to the Constitution.2

2. Decision of Justice Gopala Gowda of the High Court (single judge bench)
Justice Gowda held that the BDA Act was in contravention with part IX and IXA of the
Constitution. The Single Judge bench laid down the objectives of the amendment to
holistically understand the intention of the legislature. It also observed:

1 Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129.

2 Id.

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The amendment to the Constitution sought to strengthen the Panchayat system by giving a
uniform constitutional base so that the Panchayats become vibrant units of
administration in the rural area by establishing strong, effective and democratic local
administration so that there can be rapid implementation of rural development
programmes.3
It witnessed the same problem for Urban Local bodies as well:
In many States, local bodies have become weak and ineffective on account of variety of
reasons, including the failure to hold regular elections, prolonged supersessions and
inadequate devolution of powers and functions. As a result, urban local bodies are not able
to perform effectively as vibrant democratic units of self-Government.4

The Single Judge Bench focussed at article 243ZF which requires all legislations regarding
municipalities to be repealed a year after the constitutional amendment.
Article 243ZF aims to enable the competent Legislature to remove the inconsistency provided
by the 74th amendments objects & purposes and the old acts attributing immense power to
the central authorities instead of municipalities.5
The Single Judge Bench showcased the BDA Act to be in relation with municipalities,
because the BDA is in charge of development of metropolitan areas and municipalities are
also in charge of development of urban areas.6
Thus, by applying Article 243ZF of the Constitution, the single judge held the Bangalore
Development Authority Act invalid. However, such a holistic interpretation of Article 243ZF
was not accepted by the Division Bench of the High Court and the Supreme Court
(henceforth referred to as Courts)
3. Decision of the Division Bench of the High Court and Supreme Court

3 Id.
4 Id.
5 See Article 243ZF, Part IX A, Constitution of India.
6 Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129.

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The Courts rejected the interpretation put forth by Justice Gowda. The following sub section
showcases how every argument put forth by the Single Judge was rebutted by these Courts.

A. Reasons behind holding the Bangalore Development Act valid

The law behind the applicability of Article 243ZF has been explained in detail by the Courts.
Any statute or provision which is inconsistent with any constitutional provision is always
struck down by courts. Thus, if BDA Act or any provision of the BDA Act is found to be
inconsistent with any provision of Part IX A of the Constitution, it will be struck down by
courts. Regarding any provision of any law relating to municipalities, Article 243ZF suspends
such invalidity or postpones the invalidity for a period of one year from 1.6.1993 to enable
the competent Legislature to remove the inconsistency by amending or repealing such law
relating to municipalities (emphasis supplied) to make it harmonious with the provisions of
Part IX A of the Constitution.7 After the period ends, these laws need to be repealed.
Justice Gowda held that
BDA Act is a legislation relatable to Article 243W and some of the matters listed in
the Twelfth Schedule. Therefore BDA Act is deemed to be a law relating to
Municipalities. Having regard to Article 243ZF, any provision inconsistent with the
provisions of Part IX A of the Constitution, law relating to municipalities ceased to be
in force on the expiry of one year from 1.6.1993 - the date of commencement of the
Constitution 74thAmendment Act, 1992.
Article 243W(i) of the Constitution of India states that the municipalities will be in charge of
the preparation of plans for economic development and social justice, the performance of
functions and the implementation of schemes as may be entrusted to them including those in
relation to the matters listed in the Twelfth Schedule. 8 The twelfth schedule includes
regulation of land-use and construction of buildings, planning for economic and social
development, roads and bridges, safeguarding the interests of weaker sections of society, and
public amenities including street lighting, parking lots, bus stops and public conveniences.9
7 Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129.
8 See Article 243W(i), Part IX A, Constitution of India.
9 See the Twelfth Schedule of the Constitution of India.

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The Single Judge stated that the Bangalore Development Authority is involved in the same
activities as the municipalities. However, the Courts did not concur. The Courts said
The benefit of Article 243ZF is available only in regard to laws relating to `municipalities'.
The term `municipality' has a specific meaning assigned to it under Part IX-A.
Article 243P(c) defines the word as meaning an institution of self-government constituted
under Article 243Q. Article 243Q refers specifically to three types of municipalities, that is, a
Nagar Panchayat for a transitional area, a municipal council for a smaller urban area and a
municipal corporation for a larger urban area. Thus, neither any city improvement trust nor
any development authority is a municipality, referred to in Article 243ZF. Thus
Article 243ZF has no relevance to test the validity of the BDA Act or any provision thereof. If
BDA Act or any provision thereof is found to be inconsistent with the provisions of Part IXA,
such inconsistent provision will be invalid even from 1.6.1993, and the benefit of continuance
for a period of one year permitted under Article243ZF will not be available to such a
provision of law, as BDA Act is not a law relating to Municipalities.
They justified their argument by stating that the 74th Amendment to the Constitution
seeks to strengthen the system of municipalities in urban areas, by placing these local selfgovernments on sound and effective footing and provide measures for regular and fair
conduct of elections. Even before the insertion of the said Part IX-A, Municipalities existed
all over the country but there were no uniform or strong foundations for these local selfgovernments to function effectively. Provisions relating to composition of Municipalities,
constitution and composition of Ward Committees, reservation of seats for weaker sections,
duration of Municipalities, powers, authority, responsibilities of Municipalities, power to
impose taxes, proper superintendence and centralised control of elections to Municipalities,
constitution of Committees for District Planning and Metropolitan Planning, were either not
in existence or were found to be inadequate or defective in the state laws relating to
municipalities. Part IX-A seeks to strengthen the democratic political governance at grass
root level in urban areas by providing constitutional status to Municipalities, and by laying
down minimum uniform norms and by ensuring regular and fair conduct of elections.
When Part IX-A came into force, the provisions of the existing laws relating to municipalities
which were inconsistent with or contrary to the provisions of Part IX-A would have ceased to

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apply. To provide continuity for some time and an opportunity to the concerned State
Governments to bring the respective enactments relating to municipalities in consonance
with the provisions of Part IX-A in the meanwhile, Article 243ZF was inserted. The object
was not to invalidate any law relating to city improvement trusts or development authorities
which operate with reference to specific and specialised field of planned development of
cities by forming layouts and making available plots/houses/apartments to the members of
the public.10
Another argument put forth by the Single Judge regarding the development scheme
undertaken by municipalities and the BDA being similar was rejected by the Courts. The
Single Judge suggested that a development scheme for a Bangalore Metropolitan Area which
the BDA is required to draw up under section 15 of the BDA Act is conceptually and
effectually the same as the development plan with reference to a municipality referred to in
Article 243W and a development plan for a metropolitan area referred to in Article 243ZE. 11
The Court stated that after the insertion of Part IXA in the Constitution, a development plan
for a metropolitan area could only be laid down by a democratically elected representative
body which is the Metropolitan Planning Committee.12 Therefore, one year after 1.6.1993 (the
date on which Part IXA of the Constitution was inserted), BDA had no authority to draw any
development scheme.13
To dismiss this argument, the Courts analysed the Preamble of the BDA Act. It describes the
Act as `an Act to provide for the establishment of a Development Authority for the
development of the city of Bangalore and areas adjacent thereto and for matters connected
therewith.14 By the word development, the Legislature intended to attribute it to carrying
out of buildings, engineering or other operations in or over or under land or the making of
any material change in any building or land and includes redevelopment.15 Hence, the Courts
stated that the purpose of the creation of such a body would be to make lay outs, construct

10 Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129

11 Id.
12 Id.
13 Id.
14 See Preamble, 74th Constitutional (Amendment) Act, 1992
15 See Section 2(j), Bangalore Development Authority Act, 1976

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buildings or carry out other operations in regard to land. 16 Municipalities, on the other hand,
the Courts suggested,
are concerned with economic development providing social justice (urban poverty
alleviation and slum improvement) regulating land use and constructions, providing
amenities (roads, bridges, water supply, fire services, street lighting, parking, bus stops,
public conveniences), promoting education and culture etc.17
Both urban town planning nor regulation of land use and construction arent similar to the
`development' as contemplated in BDA Act, which is carrying out building, engineering
operations in or over or under land. 18 It would thus be seen that the object and functions of
Municipal Corporations are different from the object and purpose of a development authority
like BDA. BDA is not a municipality. Since BDA is not a municipality, the Courts held that
the Act wouldnt be nullified by article 243ZF.
Another issue that came up was regarding the need for an elected body to handle issues of
development. It was contended that the BDA Act was a Legislation which related to some
responsibilities and functions of Municipalities, enumerated in the Twelfth Schedule to the
Constitution

read

with

Article 243W and

that

its

provisions,

in

particular,

Sections 15 to 19 were inconsistent with the provisions of Part IXA of the Constitution; 19 that
no law can entrust powers and responsibilities referred to in Article 243Wincluding those
relating to matters listed in Twelfth Schedule to an authority other than an elected body; 20 and
that therefore the BDA Act assigning such powers and responsibilities to a non-elected
authority ceases to be in force.21 The Division Bench has a staunch reply to this contention as
well. They stated that while it is true that BDA is not an elected body like the municipality,
it has several elected representatives as members. Section 3relates to the Constitution of the
Authority and provides that the Authority shall consist of 22 members and made up as
follows:
- Six officers of the BDA viz., The Chairman, The Finance Member, The Engineering
Member, The Town Planning Member, The Commissioner and Secretary of the Authority. (All
16 Bondu Ramaswamy v. Bangalore Development Authority, (2010) 7 SCC 129
17 Id.
18 Id.
19 Id.
20 Id.
21 Id.

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of them are full-time employees, three of them are specialists in finance, engineering and
town planning.
- Four elected representatives, that is, two members of state legislature assembly and two
counsellors of Bangalore Municipal Corporation.
- One representative of the state government and four representatives of statutory
corporations, that is, the Commissioner of Bangalore Municipal Corporation and
representatives of Bangalore Water Supply Sewerage Board, Karnataka Electricity Board,
and Karnataka State Road Transport Corporation.
- Six members of the public (with minimum of one woman, one person belonging to SC/ST,
and one representing labour)
- One Architect.
The Courts stated that the members of the BDA represent different interests and groups,
technical persons and elected representatives.22 Also, no development scheme can be
completed or put into effect without the sanction of the State Government which in turn has
to take note of any representation by the Bangalore Municipal Corporation in regard to the
development scheme.23 Thus, the mere fact that BDA is not wholly elected body as in the case
of a municipal corporation will make no difference. The membership pattern is suited to fulfil
the requirements of a specialist agency executing development schemes.24
The Courts tried to differentiate in their functions further by stating that the BDA is
empowered by the Act to formulate schemes for a different sort of development than what
the municipalities are concerned with. The Courts defined the term development in this
context to mean building, engineering or other operations in regard to land, that is making
available plots for allotment to members of the public. 25 BDA is authorised to acquire lands
for the execution of development schemes, prepare layouts and construct buildings, provide
drainage, water supply and electricity, provide sanitary arrangements, form open spaces,
lease, sell or transfer the plots/immovable properties. According to the Courts, the
municipalities were in charge of development on land, which was different from the BDAs
responsibilities and functions.
22 Id.
23 Id.
24 Id.
25 Id.

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Thus, the Court concluded that the BDA Act operates in totally different areas from the areas
mentioned in Part IX A of the Constitution.
4. Critical analysis of the literal construction used to interpret Article 243ZF
The Court has interpreted Article 243ZF with respect to the BDA Act in a very literal sense.
The essence of the 74th Amendment has not been captured by the Court. Through this
judgment, the Court has belittled the existence of this Amendment to mere Directive
Principles of State Policy, acting as guidelines and not law.
Literal Construction is usually required to be practiced by Courts, unless it leads to an obtuse
result. The next sub-section explains how the interpretation followed by the Court was not the
correct interpretation.
A. Deconstructing the difference in the BDA Act and municipalities
The Court relied on technical differences between the BDA and municipalities. However, the
objects and purposes of the Bangalore Development Authority, and multiple sections within
the BDA Act suggest otherwise. Many items listed as contents of the Master Plan under
Section 12 of the BDA Act and a town planning scheme under section 26 or items such as
zoning of land, reservation of areas for parks, playgrounds, public buildings or institutions,
complete street pattern, drainage including sewerage, lighting, water supply etc., used to be
considered as municipal responsibilities.26 These responsibilities are also highlighted in the
statement of objects and reasons of the 74th Amendment, Article 243ZE (3) (a) of the
amendment act, and the twelfth schedule.
Article 3 (g) of the Amendment Act, which lays down the objects and reasons of the
amendment, states that the objects and reasons of this act is the devolution by the State
Legislature of powers and responsibilitiesupon the Municipalities with respect to preparation
of plans foreconomic development and social justice, and for the implementation of
development schemes as may be required to enable them to function asinstitutions of selfgovernment.27
Article 243ZE (3) (a) states that every District Planning Committee shall, in preparing the
draftdevelopment plan, have regard to26 See K.C. Sivaramakrishnan, Courts, Panchayats and Nagarpalikas, published by Academic Foundation
(2009), at pg 300; See also Master Plan of the Bangalore Development Authority Act, 1976.
27 See Article 3 (g), the 74th Constitutional (Amendment) Act, 1992.

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(i) matters of common interest

between the Panchayats and the Municipalities including

spatial planning, sharing of water and otherphysical and natural resources, the integrated
development ofinfrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial orotherwise.
The twelfth schedule also mentions the responsibilities of the municipalities which have been
mentioned before. Article 243W, which has been mentioned before, also showcases
responsibilities analogous to the duties of the BDA laid down in its Master Plan. The Courts
failed to look at these responsibilities devolved on the municipalities which overlapped with
the BDA.
The Courts focussed on the phrase relating to the municipalities in a strict sense, by
obliterating the meaning of the word relating. The Courts tried to show a difference in the
functions of the BDA and the municipalities, however that can not be the only meaning of the
word relating. It has been observed by K.C. Sivaramakrishnan that there are several things
that draw a nexus between the BDA and the Bangalore Municipal Corporation. 28 He observed
that the area of the BDAs jurisdiction is based on the delineation of the city as defined for the
Bangalore Municipal Corporation.29 He threw light on a number of provisions that display a
substantive relationship between the BDA and the municipal corporation. 30 Section 17 of the
BDA Act states that the BDA shall have to send the schemes it has drawn up to the municipal
corporation for views.31 Any betterment tax collected by the BDA from development schemes
to which the corporation may have made contribution are credited to the municipal
corporation's funds.32 Section 29 states that before handing over completed schemes to the
municipal corporation, the BDA can levy a certain amount of taxes. 33 Under Section 30 the
streets, and layouts developed by the BDA have to be handed over to the municipal
corporation.34 Thus, stating that the BDA Act is not relatable to the municipalities, even in
the sense of supervision, shows complete ignorance on part of the Court regarding the
functioning of both the BDA and the municipal corporations.
28 See K.C. Sivaramkrishnan,Judicial Setback for Panchayats and Local Bodies, Economic and Political
Weekly, Vol. 45, No. 32 (AUGUST 7-13, 2), pp. 43-46
29 Id.
30 Id.
31 Id.
32 Id.
33 Id.
34 Id.

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It may be argued that such a relationship wont be covered by Article 243ZF, because Article
243ZF was added to prevent any inconsistency between the amendment and any legislation.
Even if the BDA Act is considered valid, such a relation would not lead to inconsistency.
However, article 243ZF was not meant to focus on the relation between parastatal agencies
and municipal corporations. It was meant to fulfil the intent of the 74th Amendment which
would not be achieved if the BDA Act is considered valid.

In an earlier argument mentioned above, the Courts stated that Part IX A seeks to strengthen
municipal corporations by laying down minimum uniform norms and by ensuring regular
and fair conduct of elections. The text of the Constitution does not mention that Part IX As
intention was to only hold elections and establish norms. This is an interpretation of the
Courts that cannot be substantiated by either logic or support of the text. The intent of the 74 th
Amendment goes against the assumption drawn by the Courts.
B. Intent of the 74th Amendment
The 74th Amendment was brought into effect so that the imbalance between the powers of the
municipal corporations and panchayats, and parastatal agencies is rectified.
The facilities provided to the parastatal agencies are transferred from the resources promised
to the municipal corporations. Inadequate professional staff and lack of capacity in municipal
corporations are repeatedly cited to criticise the Urban Local Bodies (ULBs). 35 However, it is
conveniently forgotten that the functional domain of the ULBs have been continuously
undermined by the State Governments by setting up parastatal agencies and diverting
municipal functions and funds to them.36
Hence, the 74th Amendment was targeting at decentralization. The first paragraph of the
statement of objects and purposes of the 74th Amendment states that:
In many States local bodies have become weak and ineffective on
account of a variety of reasons, including the failure to hold regular
35 K.C. Sivaramakrishnan, Re-visioning Indian Cities The Urban Renewal Mission, SAGE Publications,
2011, page 95

36

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elections, prolonged supersessions and inadequate devolution of powers
and functions. As a result, Urban Local Bodies are not able to
perform effectively as vibrant democratic units of self-government.37
The 74th Amendment tried to lay down provisions such that the above mentioned problems
could be solved. However, the Court drew a distinction between the ULBs and BDA, and did
not repeal the act as demanded by Article 243ZF. Thus, the Court did not attempt to solve the
problem faced by ULBs because of the existence of parastatal agencies. It just aggravated the
situation by not giving cognizance to the fact that the parastatal agencies are in fact an
encumbrance on the functioning of the municipal corporations because of inadequate
devolution of powers and functions by the State Government.
Through the Supreme Court judgment, the 74th Amendment is interpreted as a mere extension
to Article 40 in the Directive Principles of State Policy, making its provisions only an
enabling stipulation and not mandatory.38
The Supreme Court has failed to internalize the intention of the 73 rd and 74th Amendments in
various cases.39 Along with those cases and Bondu Ramaswamy v. Bangalore Development
Authority, the idea of these amendments being mere guidelines has grown stronger.
C. Infirmities with the interpretation of the Court
The general principle of rule interpretation is that the courts should confine themselves to the
written text of the constitution rather than take a route to its spirit. 40 It can be argued that the
Courts could not apply the most basic form of interpretation correctly. While interpreting the
74th Amendment, one need not pursue any abstract concept of decentralisation, but merely
rely on the text of the constitutional provisions and then determine to what extent state laws

37 See Statement of Objects and Reasons, 74th Constitutional (Amendment) Act, 1992,
http://indiacode.nic.in/coiweb/amend/amend74.htm
38See K.C. Sivaramakrishnan, Courts, Panchayats and Nagarpalikas, published by Academic Foundation
(2009), at pg 313
39 K.C. Sivaramakrishnan has discussed the Textile Mills Land case, the Shanti Patel Case, Forum for a better
Hyderabad v. Government of Andhra Pradesh, and Bihar Rajya Panchayat Parishad v. Union of India. In all
these cases, the Court has failed to understand the intention of the 73rd and 74th Amendments. See K.C.
Sivaramakrishnan, Courts, Panchayats and Nagarpalikas, published by Academic Foundation (2009), at pp
285-313
40 Id.

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are in conformity or an infraction.41 Taking a stand that the BDA is not related to municipal
corporations, even though all development activities undertaken by the BDA come under the
responsibilities of the municipalities, would mean that the 74 th Amendment has provided for
only creating a structure for municipalities, but it is permissible to a state government to not
assign functions and powers which would render the structure empty.42
It could also be argued that if only the text of the constitution needs to be interpreted directly,
it would lead to the same result as the Courts produced. Thus, applying Justice Gowdas
approach while interpreting the amendment and the BDA Act may lead to positive results, but
not literal interpretation.
Justice Gowdas interpretation requires the Courts to find the intent of the legislation, and
then interpret it contextually. Hence, the Courts could either use the Mischief Rule or
contextual interpretation. Both of these interpretations would lead the Courts to figure out the
intention of the 74th Amendment, which would consequently result in an interpretation of
article 243ZF which does not focus on the words relating to municipalities. The Courts
would rather focus on the function played by this article and what its trying to achieve.
Since Article 243ZF is trying to allocate funds and devolve powers on only municipalities
and panchayats, the Courts should have held the BDA Act invalid because this development
authority uses funds that need to be transferred to the municipal corporations, and exercises
jurisdiction over making development plans when that duty is already assigned to municipal
corporations.
5. Conclusion
To conclude, the judgments provided by the Courts have misinterpreted the Amendment Act.
They have focussed on mere words, and not paid heed to the inconsistency their
interpretation would lead to, between the development authority acts and the Amendment
Act.

41 Id.
42 See K.C. Sivaramakrishnan, Courts, Panchayats and Nagarpalikas, published by Academic Foundation
(2009), at pg 314

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Instead of an absurd literal interpretation of the text, the Courts should have paid heed to the
intention of the Amendment Act, and the similarity between the roles played by the BDA and
the municipal corporations. The Courts concentrated on the narrowed work area presumed to
be devolved upon the BDA, which was engineering and technical assistance regarding
development. The Courts did not try to understand that even the narrowed down version of
BDAs scope of work comes under the responsibilities of the Municipal Corporations since
they are completely in charge of development and engineering and technical assistance for
development comes under the ambit of municipal corporations.
Such misinterpretation has led to the Amendment Act just posing as a guideline, like directive
principles of state policy. The intention of the Amendment Act was noble. However it is
difficult to be fulfilled after this judgment.