S. D. SHAH, J. ( 1 ) RULE to be heard today. Mr. P. G. Desai and Mr. V. C. Desai waive service of rule on behalf of respondents. ( 2 ) BY this petition petitioner who is Corporation in giving the plot of land to a trustee of Mahila Arthikvikas Trust challenges the action of the Ahmedabad Municipal Corporation in allowing the plot of vacant land admeasuring about 654 sq. yds situated near Shahibag Police Chowki to respondent No. 2 on the terms and conditions stated in the order of allotment. ( 3 ) THE facts giving rise to the present petition shortly stated are as under : (I) A parcel of land bearing Final Plot No. 192 of Shahibag admeasuring 658 sq. yds is of the ownership of the corporation. The said plot is reserved as open space in the T. P. Scheme No. 14. Just adjacent to this plot of land the respondent No. 2-Society is situated. This open plot of land was being used by hutment dwellers for easing themselves and for dumping garbage and that caused nuisance to the members of the respondent-Society. (II) Different parties including the petitioner-trust and respondent No. 2-Society applied to the respondent-corporation for permitting them to develop the said plot of land. Respondent No. 2-Society applied for permission to make a public garden and the petitioner also applied for the said plot of land for making a public garden. One Harish D. Diwan applied for allotment of said plot of land for putting up construction for starting centre to assist sick persons. (III) After considering applications of all the aforesaid four applicants the Municipal Commissioner decided to give the said plot of land to the respondent No. 2-Society after taking into the consideration the fact that the plot was situated adjacent to the respondent No. 2-Society and secondly that the respondent No. 2-Society can well look after the said plot and can well develop the said plot. The Standing Committee of the respondent-Corporation thus decided to allot the said plot of land for development on an yearly token fee Rs. 101. The Standing Committee of the respondent-Corporation thus decided to allot the said plot of land for development on an yearly token fee Rs. 101. 00 on the following conditions : (i) Since the land is reserved in T. P. Scheme No. 14 as `open space it shall be developed only as open space by making a garden and no construction shall be made thereon; (ii) the ownership and possession of the said plot shall remain with Ahmedabad Municipal Corporation; (iii) the said plot of land shall remain open for access to public without any charge; (iv) the respondent No. 2 shall develop and maintain the garden which will be developed on the said plot; (v) proper arrangement for light shall be made with consent and under the direction of the Garden Superintendent and City Engineer of the respondent-Corporation; (vi) the corporation shall not charge water charges electricity charges for use in the said plot of land; (vii) the plot shall not be used for exhibiting any advertisement boards and the name of the said plot or garden shall be determined by the Ahmedabad Municipal Corporation; (viii) the expenses for maintenance and administration of said garden shall be born by the respondent No. 2-Society. (IV) From the resolution of allotment and terms and conditions subject to which the plot of land is given to respondent No. 2-Society for development of public garden it becomes clear that the respondent-Corporation has not disposed of said plot of land. It has not sold leased or in any way transferred the said plot of land to the respondent No. 2. It has not created any proprietory interest in favour of respondent No. 2 The ownership of the said plot is with the respondent-Corporation and possession of the said plot also remains with the respondent-corporation. It is further stipulated that the access to the public to the said plot of land is not restricted nor is the respondent No. 2-Society entitled to charge anything from any person entering the said plot of land. It is thus clear that the respondent-Corporation has not in any way disposed of the said plot of land to the respondent No. 2-Society. It is thus clear that the respondent-Corporation has not in any way disposed of the said plot of land to the respondent No. 2-Society. (V) It is pertinent to note that the respondent No. 2-Society has given undertaking to the respondent No. 1-Corporation that it shall develop the garden on the said plot of land and it shall provide all the instruments for games for children. It has also undertaken to provide benches for visitors. It has also undertaken to grow lawns trees flower plants at its own cost and expenses. It has also undertaken to appoint Gardner and Watchman and it has stated that such Gardener and Watchman will be the employees of the respondent No. 2-Society and not that of the Corporation. It has also agreed to the condition that the ownership and possession of the plot shall remain with Corporation. (VI) The respondent No. 2-Society has in its affidavit-in-reply further pointed out that out of four applications three applicants are in fact connected with the present petitioner. It is submitted that One Harish Diwan is the person at whose instance various applications are filed. The wife of Harish Diwan is actively associated with the petitioner-trust and with another trust namely Manav Sevasangh. On the letterhead of said Manav Seva Sangh Telephone number of said Harish Diwan is printed. It is the case of the respondent No. 2 that in fact said Harish Diwan wanted to get this plot of land allotted to him for the purpose of putting up construction and since he has failed in his attempt to get plot of land he got instituted present petition through petitioner-trust in the activities of which his wife is actively associated. ( 4 ) MR. N. V. Solanki learned Advocate for petitioner submits that the action of the respondent-Corporation in giving plot of land for development to the respondent-No. 2 is in in blatant disregard of mandatory provisions of Sections 73 742 79 of B. P. M. C. Act 1949. By reference to Section 73 he submits that as and when the corporation intends to make contract relating to the acquisition and disposal of immovable property or any interest therein procedure prescribed by clause (e) of Section 73 shall have to be followed. By reference to Section 73 he submits that as and when the corporation intends to make contract relating to the acquisition and disposal of immovable property or any interest therein procedure prescribed by clause (e) of Section 73 shall have to be followed. He submits that looking to the terms and conditions subject to which the plot is allotted to the respondent No. 2 it becomes clear that there is contract between the respondent No. 1 and respondent No. 2 and since said contract is relating to disposal of immovable property or any interest therein mandatory provisions of Section 73 shall have to be complied with and he also refers to Section 74 (1) and (2) to bring home the point that unless the procedure prescribed by the rules is followed no valid contract can come into existence. He mainly relies upon Section 79 of the said Act. The caption under which Section 79 finds its place is disposal of property and the marginal note of Section 79 is provisions governing the disposal of Municipal property. He submits that if the Corporation wants to dispose of its property it can do so in the manner prescribed by Section 79 (a) (b) and (c ). In his submission by the impugned transaction in fact the first respondent-Corporation has disposed of its property either by sale letting out or by transferring its interest therein in favour of respondent No. 2 and therefore the procedure prescribed under provisions of Section 79 shall have to be complied with. He further submits that even if the transaction is regarded as not of sale or lease it was transaction to convey the property otherwise and therefore also the impugned transaction would be covered by Section 79. ( 5 ) MR. P. G. Desai learned Advocate for respondent-Corporation on the other submits that under the provisions of the said Act the Corporation has to perform certain obligation functions which are prescribed by Section 63 of the said Act. He further submits that Section 66 of the said Act deals with optional or discretionary functions where the Corporation may provide for any of the matters stated in clauses (1) (2) to (42 ). One of the optional functions of the Corporation is to provide gardens. He further submits that Section 66 of the said Act deals with optional or discretionary functions where the Corporation may provide for any of the matters stated in clauses (1) (2) to (42 ). One of the optional functions of the Corporation is to provide gardens. He therefore submits that the corporation may itself undertake that function or may leave that function to any other authority on such terms and conditions as it may think fit. He further submits that the transaction in question is not hit by Section 79 because by the impugned transaction the plot in question is not disposed of at all. He submits that there is neither sale nor lease of the property. The ownership of the property remains with the Corporation Possession of the property also remains with the Corporation. He says that any interest in the land is not transferred to the respondent No. 2. The property rights always vested and continue to vest in the respondent No. 1-Corporation What was given to the respondent No. 2 was liability to develop the said plot of land as public garden and the control over the said plot remained with the corporation only. The second respondent as a developer has undertaken certain liabilities including the liability to develop a garden maintain the garden to pay the salaries to the gardner and watchman etc. The developer has in fact incurred liabilities without acquisition of any right whatsoever vis-a-vis the said plot of land. In his submission it is a transaction whereby only liability to develop the said plot of land is given to the second respondent and in fact all the rights and control over the said plot are with the respondent-Corporation. Even entry to said garden is in no way left to the discretion of the second respondent. ( 6 ) THE transaction in question brings about a novel relationship between the Corporation on the one hand and second respondent on the other hand. Undoubtedly the transaction is unconventional. Firstly it does not transfer ownership of Corporation to second respondent. Secondly it is not consistent with the lease in favour of second respondent because it reserves unrestricted right of entry to the Corporation as well as to the members of public. Undoubtedly the transaction is unconventional. Firstly it does not transfer ownership of Corporation to second respondent. Secondly it is not consistent with the lease in favour of second respondent because it reserves unrestricted right of entry to the Corporation as well as to the members of public. The element of exclusive possession is therefore absent Thirdly to call it a transaction of permissive use of land would amount to ignoring investment to be made by the second respondent to develop the land as public garden. Fourthly the transaction creates more of liabilities for second respondent than creating any proprietory interest In fact it does not create any interest in favour of second respondent. The gain of second respondent if there is any is that by incurring various liabilities it would be in a position to abate nuisance arising from filthy smell emanating from garbage and human stool. It ensures comfortable living to the members of second respondent-Society as well as to public at large. As against this gain of personal comfort liabilities are tremendous. In fact Corporation does not lose any right. In these days of financial stringency it achieves a performance of discretionary function without incurring any financial liability and at the same time keeping intact its property rights. It is thus a novel transaction. It is open to the Corporation to try this new method whereby it keeps all its proprietory rights intact and transfers liabilities to develop to the third party. Observations of Justice Venkatachaliah of the Supreme Court in the case of G. B. Mahajan v. Jalgaon Municipal Council and Ors reported in 1991 SCC 91 are apposite :a project otherwise legal does not become any less permissible by reason alone that the local authority instead of execution the project itself had entered into an agreement with a developer for its financing and execution. The criticism of the projecting unconventional does not add to or advance the legal contention any further. The question is not whether it is unconventional by the standard of the extent practice but whether there was something in the law rendering it impossible. There is no doubt a degree of public accountability in all governmental enterprises. But the present question is one of the extent and scope of judicial review over such matters. The question is not whether it is unconventional by the standard of the extent practice but whether there was something in the law rendering it impossible. There is no doubt a degree of public accountability in all governmental enterprises. But the present question is one of the extent and scope of judicial review over such matters. With the expansion of the States presence in the field of trade and commerce and of the range of economic and commercial enterprises of Govt. and its instrumentalities there is an increasing dimension to governmental concern for stimulating efficiency keeping costs down improved management methods prevention of cost and time and cost over-runs in projects balancing of costs against time-scales quality control cost-benefit ratios etc. In search of these values it might become necessary to adopt appropriate techniques of management of projects with concommitant economic expediencies. These are essentially matters of economic policy which lack adjudicative disposition unless they violate constitution or legal limits on power or have demonstrable pejorative environmental implications or amount to clear abuse of power. This gain is the judicial recognition of administrators right to trial and error as long as both trial and error are bonafide and within the limits of authority. The court also found that transaction in question is merely a transaction of right of user without transferring any interest in property. ( 7 ) BEFORE the Supreme Court the transaction was an agreement with the developer or builder for construction of a commercial complex. The project contemplated its execution by the developer on self-financing basis subject to handing over the administrative building of the complex to the municipality free of cost and allotting some shops at a fixed rate/free of cost to certain specified persons while having right to disposed of the remaining accommodation at its own discretion and to retain the premia. An identical challange to this project as is raised by Mr. Solanki before me was raised before the Supreme Court. It was inter alia contended that the project in effect amounted to and involved the disposal of municipal property by way of a longterm lease with rights of subletting in favour of the developer violative of Section 92 of the Act. The Supreme Court negatived the submission and made above-quoted observations. It held that it was not established that the essential elements of the transaction do not violate Section 92 of the Act. The Supreme Court negatived the submission and made above-quoted observations. It held that it was not established that the essential elements of the transaction do not violate Section 92 of the Act. In this case I have already reached the finding that none of the essential ingredients of Section 79 of B. P. M. C. Act are violated. In fact the transaction does not amount to disposal of the municipal property. Property remains intact and ownership continues to be that of the corporation. Exclusive possession is also not parted with. What would otherwise have been the liabilities of the corporation while exercising its optional functions is by this transaction passed over to second respondent. ( 8 ) IT is thus clear from the observation made in the said judgment that in the ever-increasing tempo of urban life and the emerging stresses and strains of planning wide range of policy options not inconsistent with the objectives of the statute should be held permissible. However in the present case it is not necessary for me to set any wider proposition of law. In my opinion the action of the respondent-Corporation in giving the plot of land to respondent No. 2 for making garden on the terms and conditions stipulated does not amount to disposal of the property it does not amount to creating lease it also does not amount to transferring any right of interest in favour of respondent No. 2. It is also not correct to describe the transaction as transfer of right of development. In my opinion it shall have to be regarded as transferring liabilities to develop the plot of land as garden while reserving all the rights in the Corporation itself. The ownership is not transferred possession is also not transferred the right to access to the said plot of land is to be preserved the developer is not entitled to charge a single farthing from anyone for entry to the said plot of land. The developer therefore does not acquire any right as such but by the said transaction in question it incurs liabilities. The developer therefore does not acquire any right as such but by the said transaction in question it incurs liabilities. Since the transaction is consistent with the purpose for which the plot of land is reserved under the T. P. scheme and since in my opinion in no way any right over plot of land is transferred to respondent No. 2 excepting transferring the liabilities to develop the said plot as garden the transaction is not hit by Section 79 of the said Act nor is any formal contract required to be executed between respondent Nos. 1 and 2. I do not find any substance in the submission made by Mr. Solanki and petition therefore should fail. However while parting with this judgment it shall have to be mentioned that the respondent is required to be directed to give appropriate undertaking to this court as well as to the respondent No. 1 that in case of breach of any of the terms and conditions stipulated by the Standing Committee while giving the plot of land to the respondent No. 2 for development the second respondent shall forfeit the benefits flowing from the said transaction. The respondent No. 1 also shall take appropriate steps to see that various terms and conditionss subject to which the right to develop the land is granted are scrupulously followed by the respondent No. 2. Subject to aforesaid directions this petition fails. Rule is discharged. No costs. (RPV) Petition dismissed. .