JUDGMENT:- (1.) A municipality cites its constitutional obligation to assert a preferential right to a piece of land proposed to be sold by a Central Government undertaking. The municipality does not found its claim on legitimate expectation or any facet of estoppel but insists that its inherent duty entitles it to be put on a higher pedestal than petty realtors and complains of the first respondent’s failure to see the point. (2.) THE first respondent corporation is in the process of selling surplus lands at certain textile units identified as viable and all the land at certain other units which have been found to be unviable. The municipality has eyed a piece of land within its municipal limits that the corporation is in the process of selling as land belonging to the unviable Manindra and Bengal Textile Mills at Cossimbazar in district Murshidabad. The municipality cannot be blamed for setting its sight on the land only upon advertisements being issued by the corporation. It wrote to the chairman of the corporation on November 25, 2003 with a request for the land of the said textile unit which had remained closed for several years prior to 2003. The municipality said that it was striving for all round development of the district town within its limited financial capacity and desired the land at the nonfunctional unit for setting up a housing project thereat. The municipality persisted with its request with letters and reminders. (3.) THE municipality has relied on a brochure prepared by it on a proposed model township on the approximately 30 acres of land. The brochure speaks of habitation facilities at 78 apartments having 12 flats in each apartment for families belonging to the low-income groups and for erstwhile workers of the mills at low cost. The municipality says that in view of its constitutional obligation and the duties cast on it by the West Bengal Municipal Act, 1993 (the Act), it was incumbent on the corporation to accede to the municipality"s request for release of the piece of land at a fair price. The municipality says that in view of its constitutional obligation and the duties cast on it by the West Bengal Municipal Act, 1993 (the Act), it was incumbent on the corporation to accede to the municipality"s request for release of the piece of land at a fair price. The municipality says that unlike private parties which would be driven by profit motive to bid at higher rates in the expectation of recovering the cost of the land, the corporation should have given due weightage to the municipality"s avowed policy of furthering public cause for a greater social good and the corporation should not have insisted on the municipality lining up with land sharks for the property to be made over to the highest bidder. (4.) THE principal relief that has been claimed in the writ petition is for a writ of mandamus rescinding the modification of clause 13 of the tender terms as disclosed in a letter of May 12, 2008 by the corporation. Clause 13 of the tender conditions originally stood as follows: "13. SALE OF PROPERTY FOR PUBLIC PURPOSE if a property is required by a Central or State Government Department or a public Body/institution for official or public purpose including e. g. for public utilities like electricity, water, road, sewers etc., the ASC may decide on a course of direct dealing with such Govt. departments or a Public body/institutions instead of following open tender procedure. "13.1. Sale in such case will be at reserve price decided by the ASC." At the ad interim stage the municipality urged that clause 13 of the tender conditions gave the municipality an entrenched right to obtain the land as the only public body or institution that had cited a public purpose for acquiring the land. The immediate grievance of the municipality was the obliteration of such entrenched right by a modification belatedly introduced into the tender conditions by the corporation. Following the municipality’s letter of May 9, 2008 asserting a preferential right on the basis of clause 13, the corporation wrote back on May 12, 2008 urging the municipality to participate in the tender process and submit its bid as clause 13 of the tender conditions had been amended. Following the municipality’s letter of May 9, 2008 asserting a preferential right on the basis of clause 13, the corporation wrote back on May 12, 2008 urging the municipality to participate in the tender process and submit its bid as clause 13 of the tender conditions had been amended. The corporation’s letter recorded, "further, the clause No. 13 of the terms and condition of the tender now read as follows: "if a property is required by a Central or State Government department or a Public Body/institution for official or public purpose including e. g. for public utilities like electricity, water, road, sewers etc. , the same is also to be done, by the tender route. All concerned departments will also have to give their Bids for purchase of Land and building etc." (5.) THE municipality acted with commendable dispatch. The petition was filed on May 15, 2008 and upon the matter being assigned an ad interim order was passed on May 16, 2008. The corporation had submitted that clause 13 had mistakenly crept into the tender conditions despite an earlier policy decision to do away with such preferential treatment of government bodies citing public purpose for land use. The writ petitioner was required, by the ad interim order of may 16, 2008, to participate in the tender process without prejudice to its rights and contentions and the corporation was restrained from making any communication of final acceptance of offer to the highest bidder. (6.) AFFIDAVITS have been filed and the corporation has disclosed a memorandum of March 15, 2004 which was, presumably, the policy decision that the corporation had referred to at the ad interim stage. The memorandum is a direction by the manager (land and estates) of the holding company of the first respondent to all heads of its subsidiary corporations. Clause 3 of such memorandum of March 15, 2004 provides as follows: "3. It was further decided that the land may be disposed off by Auction process in case tender system did not facilitate realization of fair price even after retendering." (7.) THOUGH the corporation reminds that there is no challenge to the document of March 15, 2004 despite a copy thereof being disclosed in the opposition, it does not dwell on technicalities and suggests that a mandamus may issue only upon a petitioner establishing a right and demonstrating the violation of such right. The substance of the corporation’s challenge is that there is no legal right that the municipality has been able to show for a corresponding duty to flow from the corporation and appropriate writ to be issued on appreciation of the breach of such duty. (8.) THE municipality avers that implicit in it being set up is the conferment of a duty on it to adhere to such part of the Directive Principles of State Policy relevant to it under Part IXA of the Constitution of India. It refers to Article 243w of the Constitution and the furtherance of the goal of economic development and social justice envisioned by it. It relies on its mandate under the Act by which it is constituted and particularly places the following relevant provisions thereof: "63. Obligatory functions. " " (3) in the sphere of town planning and development, " (a) devising town planning within the limits of the municipal area in accordance with the laws relating to town planning for the time being in force;" (i) re-development of congested areas for providing better living conditions; (j) planned development of new areas for human settlement; "" "74. Power to acquire and hold property." The Board of Councillors shall, for the purposes of this Act, have power to acquire, by gift, purchase or otherwise, and hold, movable and immovable property or any interest therein, whether within or outside the limits of the municipal area. " "76. Acquisition of property by a Municipality by agreement, exchange, lease, grant, etc. " (1) the Board of Councillors may, on such terms and conditions as may be approved by it, acquire by agreement " (a) any immovable property, (b) any easement affecting immovable property. (2) The Board of Councillors may also acquire a property by exchange on such terms and conditions as may be approved by it. (3) The Board of Councillors may also hire or take on lease immovable property on such terms and conditions as may be approved by it from time to time. (4) The Board of Councillors may receive, on behalf of the Municipality, any grant or dedication by donor, whether in the form of any income or any movable or immovable property, by which any obligatory or discretionary function of the Municipality may be benefited. (4) The Board of Councillors may receive, on behalf of the Municipality, any grant or dedication by donor, whether in the form of any income or any movable or immovable property, by which any obligatory or discretionary function of the Municipality may be benefited. (5) It shall be lawful for the Municipality to be the beneficiary of any trust created under the Charitable and Religious Trusts Act, 1920 (14 of 1920), or the Indian Trusts Act, 1882 (2 of 1882). "77. Compulsory acquisition of land." (1) When any land, whether within or outside the limits of a municipal area, or any easement affecting any immovable property vested in the Municipality, is required for any public purpose under this Act, the State Government may, at the request of the Board of Councillors, proceed to acquire it under the Land acquisition Act, 1894 (1 of 1894). (2) The Board of Councillors shall be bound to pay to the State government the cost including all charges in connection with the acquisition of the land under the Land Acquisition Act, 1894." "296. Power to acquire land or building for orderly growth." Subject to the provisions of this Act, the Board of Councillors may acquire any land or building, whether situated within or outside the municipal area, for the purpose of " (i) opening out any congested or unhealthy area or otherwise improving any portion of the municipal area; or (ii)erecting sanitary dwellings or providing site and services for the working and poorer people; or (iii) executing any development plan or scheme to provide for the growth of the municipal area in an orderly manner, including housing programme for different sections of the community. " (9.) THE municipality places a judgment reported at AIR 1981 SC 2030 (Sarkari sastha Anaj Vikrata Sangh v. State of M. P.) and the recognition therein that it would not be unfair discrimination if the Government took a policy decision to prefer cooperative societies for appointment as their agents to run fair price shops. A judgment reported at (2004) 6 SCC 588 (M. C. Mehta v. Union of India) is then placed for the Supreme Court"s enunciation that the municipal corporation has the responsibility in respect of matters enumerated in the Twelfth Schedule of the Constitution for regulation of land use and like matters. A subsequent judgment reported at (2006) 3 SCC 434 (Bombay Dyeing and Manufacturing Co. A subsequent judgment reported at (2006) 3 SCC 434 (Bombay Dyeing and Manufacturing Co. Ltd. (3) v. Bombay Environmental Action Group) is cited as it quoted with approval the M. C. Mehta dictum on a municipal corporation"s duty. (10.) THE petitioners say that providing housing is a matter of national urgency and quote a sentence from the judgment reported at (1986) 4 SCC 251 (State of u. P. v. Pista Devi) that urges Courts to take judicial notice of such need. Paragraph 22 of a judgment reported at (1996) 1 SCC 642 (Reserve Bank of india v. Peerless General Finance and Investment Co. Ltd.) is relied upon in the context of the amended clause 13 of the tender conditions and the petitioners suggest that the altered clause does not curb the corporation"s authority, or duty, to consider a project for public purpose on merits provided a fair price for the land is obtained. In the Peerless case the Supreme Court considered a provision of the amended Reserve Bank of India Act, 1934 and construed it to be an enabling provision enacted to empower Reserve Bank to regulate the conditions on which deposits may be accepted by non-banking companies or institutions and to prevent malpractices in the matter of acceptance of deposits. It was held in such context that, "22." Such an enabling provision must be so construed as to subserve the purpose for which it has been enacted. It is a well accepted canon of statutory construction that "it is the duty of the Court to further parliaments in of providing a remedy for the mischief against which the enactment is directed and the court should prefer a construction which advances this object rather than one which attempts to find some way of circumventing it". (See Francis Bennion on Statutory Interpretation, 2nd edn., p. 711)." (11.) THE proposed sale of the relevant and other parcels of land of the mills at cossimbazar and other places is following a scheme relating to various sick industrial undertakings of the National Textile Corporation and its subsidiary companies which envisages the disposal of some irretrievably sunk units and other assets to augment resources for the continuation of other units. The municipality shows substantial industry in placing divers passages from the scheme sanctioned by the Board for Industrial and Financial Reconstruction (BIFR). The municipality shows substantial industry in placing divers passages from the scheme sanctioned by the Board for Industrial and Financial Reconstruction (BIFR). The municipality attempts to show that the consideration from sale of land and other assets is not the indispensable source of funds for reviving the other units. It is unmistakable that in addition to whatever price the sale of the assets fetch, substantial government money is required to be infused into the holding company and its subsidiaries for meeting the capital costs, creditors" payments, voluntary retirement scheme obligations and workers" dues. The municipality"s point is that if the proceeds from the sale of assets are not critical for the survival of the other struggling units, that one piece of land is offered to a public body for a noble purpose would not trip the scheme or put the skids under the entire rehabilitation package. (12.) THE municipality accepts the corporation"s contention that the purpose of the Sick Industrial Companies (Special Provisions) Act, 1985 may be as pious as the duties cast on a municipal corporation, but seeks to distinguish the scheme of rehabilitation propounded for the corporation on the ground that it is not the usual self-contained revival document and the survival of the functioning units is more dependent on the Central Government grant that the scheme postulates than on the generation of money by disposal of assets. The petitioners argue that if secured creditors like banks and financial institutions with substantial public funds are required to accept the sacrifices that the sanctioned scheme lays down for them, the making over of a piece of land a crore or two short or its market value would not impact the scheme of things. (13.) THE corporation says that the reserve price for the land set by the Asset sales Committee was not met at the bidding and the municipality"s bid of Rs. 3. 95 crore fell short of the private bid which was found insufficient. The corporation says that the highest bidder"s offer following the tender notice fell way short of the reserve price. (14.) IN its affidavit-in-reply, the municipality has relied on a valuation of the land by the office of the land acquisition authorities at Rs. 4. 59 crore and offers such amount as the fair price. The corporation says that the highest bidder"s offer following the tender notice fell way short of the reserve price. (14.) IN its affidavit-in-reply, the municipality has relied on a valuation of the land by the office of the land acquisition authorities at Rs. 4. 59 crore and offers such amount as the fair price. The corporation is still disagreeable and says it is bound to seek a price that would better the floor limit set. The corporation insists on calling a fresh tender and cites instances where the retendering process fetched the desired price in other sales. (15.) THE first respondent relies on the Bombay Dyeing (3) case referred to by the petitioner where the scheme sanctioned by the BIFR which is the subject matter of the present proceedings was considered by the Supreme Court. The corporation says that the Supreme Court weighed matters relating to urban planning with the purpose of the Act of 1985 and a rehabilitation scheme sanctioned thereunder. (16.) THE sheet-anchor of the corporation"s defence is a recent judgment reported at (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) and the principles enumerated therein relating to the issuance of a writ of mandamus. Paragraphs 11 and 12 of the report capture the essence of the decision: "11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F. G. Ferris and F. G. Ferris, Jr.: "note 187. "mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. *** note 192. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. *** note 192. "mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. *** note 196. "mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned" an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. "note 206. " " The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. " "12. These very principles have been adopted in our country. In Bihar eastern Gangetic Fishermen Coop. " " The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action. " "12. These very principles have been adopted in our country. In Bihar eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N. M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the reports (SCC): (Sipahi Singh case, SCC pp. 152-53)"15. " There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. " In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same. " therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. " therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. The respondents have not been able to show that there is any statute or rule having the force of law which casts a duty on the appellant Bank to declare their account as NPA from 31-3-2000 and apply RBI Guidelines to their case. " (17.) A judgment reported at AIR 1986 SC 1527 (Harminder Singh Arora v. Union of India) is placed by the corporation. The corporation submits that in its acceptance of the municipality"s request there would be arbitrariness as once a government or a government undertaking decides to adopt the tender process it must abide by its terms and in the absence of any policy it cannot favour a public body by granting price preference and discarding a possible better offer. In the Harminder case the Supreme Court explained the Ramana Dayaram Shetty dictum and denounced a government action betraying capricious standards for the choice of persons with whom it would deal by preferring an inferior offer from a public institution over the superior private offer. (18.) THE corporation submits that clause 15 of the tender documents gave ample power to the corporation to amend its tender conditions. It denies that article 243 (W) of the Act confers any preferential right on a municipal corporation and insists that it should be left free to sell its assets at the highest available price unimpeded by any public body"s clamouring for any land for the use thereof for a noble cause. The corporation says that it is bound by the BIFR order sanctioning the scheme and in the absence of any challenge to such order, the petitioner cannot canvass its cause. (19.) THE municipality attempts to counter the corporation"s arguments by referring to a judgment reported at AIR 1989 SC 1607 (Andi Mukta Sadguru shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V. R. Rudani) for the principle recognised therein that if a person was involved in the discharge of a public function having public character, such person would be amenable to the jurisdiction under Article 226 of the Constitution. The municipality says that the corporation is undoubtedly discharging a public function as is the municipality and if the two are pitted against each other, a clear right would emerge in favour of the municipality and a corresponding obligation on the part of the corporation. The municipality relies on the expression "and for any other purpose" contained in Article 226 of the constitution to suggest that such omnibus clause is reserved to be pressed into service in deserving cases as the present matter. (20.) IN a sense an application under Article 226 of the Constitution is a procedural facility accorded for assertion of, primarily, a constitutional or like right. Such procedural facility does not discard the applicability of the substantive law of the land in the assertion and establishment of the right and the corresponding duty. (21.) THE National Textile Corporation was used as a convenient vehicle for taking over sick private textile undertakings in the days of industrial infancy in this country. Private entrepreneurs driven by profit motive could hardly be expected to continue with bleeding units. Yet the textile sector was a formidable employer and the social conditions demanded that the State take over the struggling textile undertakings, inter alia, to protect the employees. There is also the Act of 1985 which is geared to detect sickness in industrial companies and provide a legal charter for ameliorative measures to be taken fundamentally to protect employment. The overriding provisions of the 1985 Act are in derogation of the natural rights of creditors and empower suspension of payments and claims; and even obliteration thereof under its mandate. (22.) ON the other hand there is the Seventy-fourth Amendment that came into effect in 1993 by which Part IXA was introduced into the Constitution in tune with the visions for the state and governance found in the high ideals of the directive Principles. Both the municipality and the corporation are involved in benevolent functions. However, they strive to achieve separate goals which may be for the ultimate common or public good but they chart different routes to dissimilar spheres of public good. (23.) THE fact that the National Textile Corporation discharges a public duty would not enjoin upon it any obligation to further any other public cause not central to the corporation"s avowed objectives. However, they strive to achieve separate goals which may be for the ultimate common or public good but they chart different routes to dissimilar spheres of public good. (23.) THE fact that the National Textile Corporation discharges a public duty would not enjoin upon it any obligation to further any other public cause not central to the corporation"s avowed objectives. (24.) THERE are two flanks of attack that the municipality has opened up: the first is as to its preferential right recognised by original clause 13 of the tender conditions that was sought to be belatedly altered apparently to its prejudice; and the other is that the price that the corporation should be satisfied with is the fair price for the land. Even if credence were to be given to the municipality"s first ground, the municipality cannot escape the effect of the appendage to original clause 13: that sale to a public body intending to use the land for a public purpose would be at a reserve price to be decided by the Asset Sales Committee. If the corporation"s amendment of the clause is considered unreasonable and the original clause is read into the tender conditions, there is nothing that would detract from any authority"s right to temper a concession with a condition. The challenge to the modification of clause 13 is irrelevant in the circumstances, as the municipality has not matched the reserve price set for the asset. (25.) THERE is nothing arbitrary or capricious in the corporation"s alteration of original clause 13 and even the challenge to the modification on the ground that it was not published would not hold good. Without going into the rationale for the policy decision that appears in the memorandum of March, 2004, it is evident that original clause 13 slipped into the tender conditions in disregard of such memorandum. It was not as if the corporation sought to change tack upon receipt of the municipality"s request for preferential treatment; the change was necessary in the light of the memorandum of 2004. Clause 15 of the tender terms permitted modification of the tender conditions and for bidders to be notified of any modification prior to the last date for submission of the tender documents. Clause 15 of the tender terms permitted modification of the tender conditions and for bidders to be notified of any modification prior to the last date for submission of the tender documents. Since the last date for submission of tender documents was May 23, 2008 and the petitioner received notice of the modification prior to instituting the proceedings on May 15, 2008, no grievance can be maintained by it on the ground that the modification was otherwise not publicised. (26.) THERE is, however, substance in the municipality"s contention that in course of retendering there would be avoidable waste of time and a bid which matches the old reserve price several months or years after an asset is put on the block would have to be discounted by the period of delay. Again, a consideration of such argument would have arisen if the municipality"s bid came close to the reserve price. (27.) THERE is no discredit to the municipality in espousing a matter of utmost importance and serious concern. But it fails to demonstrate a substantive right, albeit giving glimpses of an element of expectation, that would entail the recognition of any duty cast on the respondent corporation. There is also the discernable element of the municipality seeking largesse from a Central government undertaking in funding a State project unrelated to the purpose of the public sector undertaking which is apparently impermissible in the constitutional scheme of things. (28.) HOWEVER pious the municipality"s effort and however noble its motive in putting the project in place, it has failed to reveal any sliver of a legal right to ask for the reliefs that it has. There appears to be no legal duty on the corporation"s part that it can be compelled to discharge. The writ petition fails. There will be no order as to costs. (29.) URGENT certified Photostat copies of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.