JAYACHANDRA REDDY, J.

(1) WRIT Petition No. 387 of 1986 is filed by Sri Y. S. Raja Reddy, a mine owner, praying for the issuance of an appropriate writ or direction declaring the action of the 1st respondent, viz. , the Andra Pradesh Mining corporation Limited, insisting that the applications for transport permits for the barytes ore from the mines of the petitioner should be routed through them, is contrary to Rules, arbitrary and violative of Articles 14 and 19 (l) (g) of the Constitution of India, and to issue a consequential direction to allow the petitioner to apply directly to the 2nd respondent viz. , Assistant Director of mines and Geology, for transport permits after paying royalty, taxes cases, etc. to the Government. Pending the writ petition, the petitioner also sought interim directions. Our learned brother Jeevan Reddy, J. initially gave some interim direction directing that transport permits for 5000 metric tones shall be issued within four days from the date of the order. Then the Government of Andhra Pradesh got imploded as 3rd respondent and also filed a petition to vacate the said interim direction. Jeevan Reddy, J. after hearing both sides at length, felt that under the circumstances of the case same directions should be given to enable the mining operations to go on regularly and accordingly gave some directions regarding the transport permits price and the application of the Labour Laws. As against these directions, the Government filed writ appeal No. 136 of 1986. The main writ petition W. P. 387 of 1986) also is posted along with the writ appeal and both have come up for the hearing before us. It can, therefore, be seen that the orders in the writ petition will cover the writ appeal also. Therefore, for the sake of convenience, we shall refer to the parties as they are arrayed in the writ petition.

(2) THE necessary facts may be stated. In 1974 the Government of Andhra Pradesh by a notification issued in G. O. Ms. No, 27, dated 7-1-1974 declared that Barytes ore bearing areas in the villages of Mangampet and anantarajupet in Cuddapah District except those that were already leased out, were reserved for exploration in public sector. The Andhra Pradesh mining Corporation applied for grant of Mining lease in respect of 22. 7990 hectares at Mangampet village and the Government of Andhra. Pradesh granted a mining lease in favour of the Corporation (the 1st respondent)under their proceedings in G. O. Ms. No. 151, dated 10-2-1975. The petitioner was the Pattadar of an extent of 17. 4969 hectares of the said land. Being aggrieved by the decision of the Government, the petitioner preferred a revision to the Central Government under the Mineral Concession Rules and obtained stay. At that stage an understanding was reached between the petitioner, the Government of Andhra Pradesh and the 1st respondent corporation and it was agreed that the petitioner should withdraw the revision petition and that the 1st respondent should sub-lease its rights and liabilities under the mining lease granted to it by the Government, in so far as it related to 3. 102 hectares of land situate in S. No. 132/1 to 132/9 and s. No. 134/1 to 134/6 for exploration of Barytes ore by the petitioner and that the petitioner should give up his surface rights in the rest of the land i. e. , 14. 3767 hectares. On 16-6-1975 the petitioner gave letter of consent agreeing to give up his surface rights in respect of 14. 3767 hectares. The government of Andhra Pradesh by G. O. Ms. No. 215, dated 22-4-1980 gave their consent under Rule 37 (1) of the Mineral Concession Rules, 1960 to grant sub-lease. Again by G. O. Ms. No. 455 dated 19-7-1972, the Government of Andhra Pradesh partially modified the earlier notification and permitted the 1 st respondent for sub-lease in the mining lease in favour of the petitioner. Accordingly the 1st respondent executed a sub-lease on 20-7-1982 in favour of the petitioner. The said sub-lease contains several clauses. One of the clauses is that the royalty will be paid by the sub-lessee to the lessee. Clause No. 14 provides that the petitioner shall obtain specific prior concurrence of the lessee regarding the sale and rates of Barytes lumps and powder from time to time. The other clauses deal with the assets and liabilities to which the petioner is entitled and about his liability to comply with the relevant provisions of the Labour Laws and Mines Act. Clause 11 provides for the deposit of a sum of Rs. 30,000/- and for utilisation of the same to make good any default and violations of the terms of the lease deed by the petitioner during the tenure of the agreement. In the year 1983 certain differences arose between the petitioner and the 1st respondent with respect to the working of the sub-lease. The petitioner has been paying the appropriate royalties, etc. . to the 1st respondentand requesting, it to obtain transport permits. The Corporation has been obtaining transport permits, but on many occasions there had been delay and the petitioner complained about the same. But the Corporation replied that the said time was taken because the petitioner has committed certain violations of the sub-lease and the said violations were under investigatfon. It is stated in the affidavit that the petitioner has got an export order for a huge quantity and that though he has applied for export, permits, the 1st respondent Corporation is not obtaining the permits. Therefore, the petitioner has filed the writ petition with the above mentioned prayer.

(3) SRI S. Venkata Reddy, the learned counsel for the petitioner, in an elaborate argument raised several contentions, and broadly stated, they are as follows : The lease as defined by Section 3 (c) of the Mines and minerals (Regulation and Development) Act, 1957 (hereinafter referred to as " the") includes E sub-lease and that the present sub-lease was executed with the previous consent of the State Government as contemplated under Rule 37 (1) of the Mineral Concession Rules, 1960 and therefore the sub-lease is a lease in the eyes of law. As it is a "transfer" within the meaning of Rule 37, the agreement should be in Form o prescribed under the said Rules but the sub-lease in question is not in Form o and therefore it is invalid. The next submission is that since the sub-lease also is a lease in the eye of law, it can contain only the conditions mentioned in rule 27 and it is not open for the 1st respondent Corporation to include any other clauses particularly which are prejudicial to the interests of the petitioner. At any rate, any clauses other than those mentioned in Rule 27 if are to be incorporated, the consent of the Central Government is necessary and the same is absent in the present case. Therefore, some of the clauses mentioned above containing certain conditions are invalid. The other submission is that in 1983 the Telngu Desam Party came into power ; that the petitioners son was the President of the Andhra Pradesh Congress committee ; that he made several statements against the Telugu Desam and its leader and that therefore the Telugu Desam Government is bent upon taking vengeance and that the petitioners another venture "the A. P. Carbide Ltd. , "at Kurnool has been closed as a result of the harassment by the telugu Desam Government and thus the several objections raised and problems created in respect of his mining business, are mala fide,

(4) THE learned Advocate General appearing on behalf of the corporation submitted that the sub-lease in question is not strictly a transfer of lease by way of sub-letting under Rule 37, and therefore it need not strictly be in Form o. According to him, it is a simple agreement coining within the meaning of transfer of lease "in any other form" and therefore it can be in a form as near as possible to Form o and having executed such a contract, the petitioner is bound by the terms therein. It is also his submission that several stipulations in the sub-lease are provided for with a view to see that the Corporation which is the lessee in law and responsible for the implementation of all the statutory provisions, is not held guilty of the violations of the petitioner sub-lessee. Regarding the price and movement control retained by the Corporation, it is submitted that such a control is in the interests of the producers and is meant to avoid unhealthy competition and that the allegations of mala fide are totally unfounded.

(5) BEFORE we proceed to consider the rival contentions, it is necessary to refer to the relevant provisions of the and the Mineral concession Rules, 1960 (hereinafter referred to as "the Rules") Section 3 (c) of the act defines "mining lease" and is in the following terms : "3. (c) mining lease means a lease granted for the purpose of undertaking mining operations, and includes a sub-lease granted for such purpose. " rule 27 of the Rules lays down the conditions which a mining lease shall be subject to, and such conditions are required to be incorporated in the mining lease. There are several conditions mentioned in this rule which will be usefully adverted to at a later stage. Then comes Rule 37 which is important. The relevant portion of the Rule reads thus : "37. Transfer of lease : (1) The lessee shall not, without the previous consent in writing of the State Government. (a) assign, sublet, mortgage, or in any other matter transfer the mining lease, or any right, title or interest therein, x x x x x". Rule 37-A, which deals with the execution of the transfer of lease, is in the following terms :"37-A. Transfer of lease to be executed within three months : where on an application for transfer of mining lease under Rule 37, the State Government have given consent for transfer of such lease, a transfer lease deed in Form o or a form as near thereto, as possible, shall be executed within three months of the date of the consent, or within such further period as the State Government may allow in this behalf. "schedules and Forms are appended to these Rules. Form-K is the form for executing a lease-deed between the Government and the lessee, viz,, the 1st respondent Corporation in this case, and this is provided for in Rule 31, form o as provded under Rule 37-A is the Form in which transfer of lease by way of sub-lease for which the Government has given consent under. Rule 37 (l) (a) is to be executed, or in a form as near thereto as possible. A combined reading of these provisions shows that a mining lease includes a sub-lease. For a sub-lease, which is transfer of lease. The Government has to give its consent under Rule 37 (l) (a). When such a consent is given, a lease-deed has to be executed in Form o or a form as near thereto as possible, within three months from the date of the consent.

(6) THE main contention of the learned counsel for the petitioner is that the sub-lease executed by the Corporation is not in Form o, and therefore it is invalid. We shall examine this submission.

(7) AS noted above, Rule 37 lays down that the lessee, viz. , the Corporation shall not, without the previous consent of the State Government, assign, sublet, mortgage, or in any other manner, transfer a mining lease, and when such a consent is given the sub-lease, as provided under Rule 37-A has to be executed in Form o. In our considered view the transfer of lease as provided under Rule 37 (l) (a) can be by way of sub-lease or in any other manner. That means, the Government can give its consent for a sub-lease which need not strictly be subject to all the conditions mentioned in Rule 27 which purely applies to a lease. In this context Rule 37-A throws much light and under the said Rule when the State Government has given its consent under Rule 37 (l) (a) the transfer lease-deed has to be executed in Form o or in any form as near thereto as possible. Therefore, it is within the discretion of the Government to give its consent to a transfer of lease effected by way of a sub-lease or in any other manner. The Government under rule 37 (1) (a) is broadly concerned with the transfer of lease and can exercise its subjective satisfaction having regard to the various conditions while giving the consent. Just because Section 3 (c) defines "mining lease" as to include a "sub-lease", every transfer of lease by way of a sub-lease with some modifications which come under the category of "in any other manner" need not contain only the conditions provided in Rule 27. The above facts clearly go to show that it is purely a. contractual obligation between the 1st respondent Corporation and the petitioner. Admittedly the corporation is the lessee. It entered into a sub-lease with the petitioner subject to certain other conditions which do not necessarily occur in Rule 27. But the Government in its discretion gave the consent to that sub-lease which contains some more conditions which tent amount to transfer of lease "in any other manner", and "in a form as near as possible," to Form o.

(8) THE learned Advocate-General in this regard submits that if the contention of the petitioner is to be accepted, the sub-lease deed itself has to be cancelled, because it is not between the parties, viz. , the lesser and the sub-lessee, as provided under Form o. A perusal of Form o shows that this is a tripartite agreement by way of a lease between the transferee, the transferor and the Government. In the sub-lease deed before us, the government is not a party. Therefore, according to the learned Advocate general, if the extreme view, via, that the lease itself is not in accordance with the and the Rules were to be accepted then the whole thing has to be cancelled.

(9) THE learned Counsel for the petitioner on the other hand submitted that certain conditions in G. O. Ms. Nos. 215 and 455 mentioned by the Government can be severed and likewise the offending clauses in the sublease also can be struck down, or in the alternative a declaration can be given under Article 226 that these conditions and the clauses are invalid, and direct the Government to enter into a regular lease deed as required under Form-O. We are afraid we cannot agree with the learned counsel we have already held that a transfer of lease which may amount to sublease, need not contain only the conditions mentioned in Rule 27. It can be a sub-lease amounting to transfer of lease with some more conditions. In any event, this is not a rule or a regulation to which the concept of severability can be applied. This is a pure and simple contract between the corporation and the petitioner entered into in the 1982 and the same is sought to be questioned in the year 1986. In this context it is also useful to refer to G. O. Ms. No. 215. dated 22-4-1980. GOVERNMENT OF ANDHRA PRADESH abstract mines and Minerals Mining Lease Assignment of certain lands by the A. P. Mining Corporation to private parties at Mangam-pet for mining Barytes Orders Issued. INDUSTRIES AND COMMERCE (MINES. III)department g. O. Ms, No. 215, dated 22-4-1980 1. From the A. P. Mining Corporation letter No. Nil dated 17-7-1978. 2. From the Director of Mines and Geology Lr. No. 31354/ mit/78, dated 1-12-1978. ORDER the issue of implementing the agreement arrived at between the State government, the A. P. Mining Corporation and certain private parties to enable to expeditious exploitation of Barytes under the orders of reservation of Barytes for Public Sector has been engaging the attention of the government and others concerned for some time. In furtherance of the agreement, certain cases filed in the courts have been withdrawn by the private pattadars. The pattadars have already given their lands and the Andhra Pradesh Mining Corporation is working them. In turn, certain small extents have to be given to the pattadars for extracting Barytes. Somehow several legal hurdles have come in the way of implementing the agreement by giving the lands from the said of the Andhra Pradesh Mining Corporation to the pattadars covered by the agreement. Legal opinions on several connected on several connected issues have been obtained also. And, now in consultation with the Andhra Pradesh Mining corporation and also the private pattadars, it is hereby decided to allow sub-letting the lands by the A. P. Mining Corporation to the private pattadars for working by them and in accordance with rule 37 (1) of Mineral Concession Rules, 1960 and in such a way as not to upset the objectives of reservation. The agreement conditions between the A. P. Mining Corporation and the private pattadars should also be got formally approved by government. (By order and in the Name of the Governor of Andhra Pradesh)t. L. Sankar, secretary to Government". . . . The G. O. shows that there are special circumstances which were considered by the Government before giving the consent. The question of implementing " the agreement between the Government and the A. P. Mining Corporation and the private parties like the petitioner was there and that was with a view to exploration of Barytes under the orders of reservation of Barytes for public sector. It was also agreed that the objectives of reservation of exploration of Barytes in public sector should not be upset and in that view of the matter the Government, while giving the consent also laid a condition that "the agreement conditions between the A. P. Mining Corporation and the private pattadars should also be got formally approved by Government". It can, therefore, be seen that the agreement arrieved at was not treated to be a transfer of lease which necessarily attracts Form-O and at any rate the government also was not a party to the lease deed. That being the position the question of executing the same in Form-O did not arise.

(10) THE learned counsel for the petitioner however, submits that the exploration of the minerals, the lessees, the sub-lessees mortgage, assignment, etc. , ar; all governed by Rules and regulations and there cannot be any other form and that being so, the sub-lease should be declared as being contrary to law and that the petitioner can be given the necessary relief as mentioned above, by deleting the severable conditions and clauses. Reliance is placed on a decision of the Supremes Court in Mahboob sherif and Sons vs. Mysore State Transport Authority That was a case of renewal of a permit under the Motor Vehicles Act. The Regional Transport authority renewed the permit under Section 58 (2) only for one year. The same was questioned on the ground that the authority should follow the law laid down by the Courts in respect of the order of renewal granted by it in accordance with Sec. 58 (1) (a) of the M. V. Act. The Supreme Court held thus: "the duration of a permit under Sec. 58 (l) (a) cannot be less than thieve years and more than five years and it is not a discretion left with the authority. " in this context it is observed thus :"it is true that where it is a case of discretion of an authority, this court will only quash the order and ask the authority to reconsider the matter if the discretion has not been properly exercised. But in this case, the discretion is not absolute; it is circumscribed by the provisions of sec. 58 (1) (a) which lays down a duty on the Authority which grants a renewal to specify a period which is not less than three years and not more than five years. The duty being laid on the Authority which has in this case decided to grant a renewal to specify a period not less than three and not more than five years as the duration of the renewal, it is in our opinion open to this Court to direct the Authority to carry out the duty laid on it by Section 58 (1) (a) read with section 58 (2). When it has granted the renewal. "in our view, this principle laid by the Supreme Court cannot be applied to the facts before us. The consent under Sec. 37 (l) (a) is discretionary and while giving the consent the authority took several circumstance necks into consideration and this Court, while exercising its jurisdiction un deer Art. 226 cannot in an objective manner decide as to which condition weighed with the government and which condition did not weigh. As already mentioned, the government was keen that the objectives of reservation should not be upset, and the consent was given in consultation with the Mining Corporation and the Pattadars, thereby indicating that the petitioner was also a consenting party to such an arrangement and the Government also finally was of the view that the lease-deed should be between the 1st respondent-Corporation and the petitioner. In our view the sub-lease is not exactly in Form O but in a form very near to that and such an execution of transfer of lease is provided under Rule 37-A, and the Government can give consent to such a transfer of lease which comes within the meaning of the expression "in any other manner". Therefore, we are firmly of the view that part of G. O. Ms. No. 215 and some of the clauses which were agreed upon by the parties cannot be declared as invalid, while exercising the jurisdiction under Art. 226. B

(11) AT this juncture we must also notice one of the contentions put forward by the learned Advocate General. It is submitted that a writ does not lie and Arts. 14 and 19 (1) (g) of the Constitution are not available after the execution of the contract. His further submission is that merely because the Mining Corporation is an instrumentality of the State Government for the purpose of Article 12, a writ cannot lie in respect of a pure and simple contract entered into between it and the private parties. It is also his submission that the petitioner having entered into a lease-deed with open eyes and having waited for three years, it is not open for him now to repudiate some of the clauses in the sublease with a view to wriggle out of the contractual obligation and in this context the Court has to to the difference between the obligations of the Corporation as Companies Act in respect of the contracts entered into, and on the other hand being amenable to writ jurisdiction where statutory violations are complained of. According to the learned advocate General, in the instant case the Mining Corporation has not exercised any power, which has a statutory flavour so as to attract writ jurisdiction. At this stage it may be necessary to refer to some of the decisions of the Supreme Court, and other High Courts. Harshankar vs. Deputy Excise and Taxation Commissioner is a case where bids were offered for vending country liquor voluntarily and knowing the terms and conditions of the auctions which were announced and later the appellants questioned the demands made upon them by the Government officials. A preliminary objection was raised that writ itself was not maintainable. The constitutional Bench observed thus :"analysing the situation her, a concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations. "radhakrishna Agarwal vs. State of Bihar 3 is a case where there was revision of rate of royalties payable by the petitioner for the lease to collect and exploit said seeds from forest area. It was contended on behalf of the g government that the Governmental authorities when acting in the contractual filed, would not be controlled by Article 14 of the Constitution and that when the State had entered into contracts with citizens who carry on their trade and pay the royalties, in accordance with the agreements reached between the State and the citizens, it does not exercise any special governmental or statutory powers. Their Lordships referred to several earlier decisions of the Supreme Court cited by the learned counsel for the appellants, and observed thus:"we do not think that any of these cases could assist the appellants or is at all relevant. None of these cases lays down that when the State or its officers purport to operate within the contractual filed and the only grievance of the citizen could be that the contract between the parties is broken by the action complained of the appropriate remedy is by way of a petition under Art. 226 of the constitution and not an ordinary suit. "their Lordships quoted Har Shankars case (supra) and other decisions of the Supreme Court, with a approval and finally held thus :"in the case before us, allegations on which a violation of Art. 14 could be based are neither properly made nor established. Before any adjudication on the question whether Art. 14 of the Constitution could possibly be said to have been violated as between persons governed by similar contracts, they must be properly put in issue and established. Even if the appellants could be said to have raised any aspect of Art. 14 of the Constitution and this Article could at all be held to operate within the contractual filed whenever the State enters into such contracts, which we gravely doubt, such questions of fact do not appear to have been urged before the High Court. And, in any event, they are of such a nature that they cannot be satisfactorily decided without a detailed adduction of evidence, which is only possible in ordinary civil suits, to establish that capacity through its officers, has discriminated between parties identically situated. On the allegations and affidavit evidence before us we cannot reach such a conclusion. Moreover, as we have already indicated earlier, the correct view is that it is the contract and not the executive power, regulated by the Constitution, which governs the relations of the parties on tacts apparent in the cases before us. "

(12) IN United Collieries vs. Engineer in Chief South Eastern rely Division Bench of the Madhya Pradesh High Court, while dealing with a case which arose under the Mining Lease under Mineral Concession rules, observed thus :"any dispute between the parties with regard to the rights and privileges granted under a contract must be litigated in the ordinary civil courts and not in proceedings under Art. 226. It is well recognised that under Art. 226 and 227 of the Constitution directions cannot be given for enforcing or preventing a branch of rights and obligations contractual in character. "in Azamabad Industries Association vs. Secretary S. S. Industries a learned single Judge of this Court considered a similar question. That was also a case of contract in respect of payment of quit rent pursuant to a contract with the Government. The Learned Judge, after referring to Radhakrishna Agawams case (supra) observed thus :"in the present case, there is no exercise of sovereign power; it is a contract the State has entered into with respect to its property. There is no statute that has any effect of altering or varying the terms or that contract. "

(13) WE have already discussed the nature of the sub-lease and how the Government has given consent and how there was a concluded contract. The sub-lease does not contain any statutory terms or obligations and no statutory power or obligation in respect of carrying out any of the conditions of the sub-lease is involved. In Radhakrishna Agawams case (supra) the supreme Court further observed thus :"even in cases where the question is of choice or consideration of competing claims before an entry into the field or contract facts have to be investigated and found before the question of a violation of Art. 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, involving examination and cross-examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the constitution. "as held by the Supreme Court, in the instant case also we cannot draw our own inference and reach our own conclusions as to what are the circumstances under which the parties agreed for the lease and those which prevailed upon the Government to give the consent. Consequently a writ cannot lie questioning the conditions agreed upon and incorporated in the sub-lease.

(14) WE shall however separately consider whether the issuance of transport permits is one of the conditions agreed upon and whether in issuing such transport permits the statutory power is involved.

(15) WE shall now advert to some of the decisions cited by the learned counsel for the petitioner in support of this submission. In Ram Lal and Sons vs. State of Rajasthan a mining lease was granted by the State Government on realisation of premium without the prior approval of the Central government. The lessee filed a writ petition claiming refund and it was ordered. Relying on this, the learned counsel submitted that in a case of mining lease also a writ is maintainable. The Supreme Court did not go into the question of maintainability. In any event, granting of a lease was a statutory function and that was found to be illegal because there was no approval of the Central Government and naturally refund of the premium was claimed: That does not mean in all cases of lease, though they are purely contractual, a writ lies. Shiv Shankar Dal mills vs. State of Haryanal is also a case where refund of illegal recovery of market fee is claimed. The Supreme Court observed that where there is a legal injury, it is perfectly open for the Court to exercise power under article 226 of the Constitution. It is also observed that where public bodies under color of public laws, recover peoples moneys, later discovered to be erroneous levies the Court has to interfere. It may be mentioned that the supreme Court did not go to the extent of holding in a case of pure contract also the extent can interfere.

(16) YET another case cited is Begum Bazar Fish Market Association vs. M. C. H. 8 In that case it was found that different procedures were adopted by the Municipal Corporation in the imposition of the fee on sales in different markets. The difference between tax and fee also was considered, and it was held that the Corporation was not competent to impose tax. The ratio in this case does not in any event help the petitioner. Strong reliance is placed on a Judgment of Ramaswamy, J. in V. Raghunadha Rao vs. State of A. P. 9 In that case the petitioner submitted a tender to construct a spillway and it was accepted. By Lump sum agreement the petitioner undertook to complete the work within eight mouths. There was some delay and the matter was referred to arbitration. As per the agreement the 1st respondent, viz. , the Department, has to fix pipes and the petitioner has to drill grout holes and drainage holes and in them the 1st respondent had to grout with cement with slurry and seal them. But the Department has not done its part. The standard specifications provide for making final measurements and payment of lump sum amounts. Questioning certain clauses in the agreement, a writ petition was filed. It was also contended that the clause enabling the appointment of the departmental officials as arbitrators is obnoxious to fair play in action and offends articles 14 and 21 of the Constitution. From the Judgment it appears that elaborate arguments were heard about the maintainability of the writ petition. The learned Judge, after referring to Ramanna vs. LA. Authority of India and Basheeshar Nath vs. Income-tax Commissioner and also certain passages in the Administrative Law by renowned authors, observed thus :"the Government being a welfare State with ever expanding measures of economic activities to establish socialist secular democracy comes into contractual relations with citizens. . . . . . . . . . . . . . . . . . . . . . The State has to justify its action and satisfy the conscience of the court of the constitutional validity of clauses, in particular, when the contract involves over reaching consequences impinging the fundamental rights of the citizens".

(17) THE learned Advocate General submits that the view taken by the learned Judge cannot be sustained. Anyway we do not propose to examine whether the view taken by the learned Judge in general is right or wrong. But having regard to the special circumstances in that case, it is reasonable to infer that the State Government which has directly entered into an agreement, has to discharge certain functions which are statutory in nature though they are incorporated in the agreement. In that perspective, the view taken by the learned Judge in that particular case appears to be reasonable. Therefore, we distinguish that case. However, we cannot go to the extant of holding that every case of contract between a State or a Corporation and a private citizen attracts writ jurisdiction when there is breach of the conditions, though an exercise of statutory power is not involved. In other words, a State or an instrumentality of the State, though comes within the meaning of state for the purpose of Article 12, will not be amenable to writ jurisdiction in respect of simple and pure contracts entered into by them with a party when there is no statutory power or flavour involved in implementing the conditions.

(18) AS to when such a statutory power is involved in complying with the conditions, depends upon the facts and circumstances of each case. In the instant case as already mentioned, the lease is between the Mining corporation and the petitioner. The condition that the lease was agreed upon after obtaining the consent under Rule 37 (1) (a) does not make any change in respect of the character of the lease which is purely contractual in nature

(19) AT one stage we considered whether the issuance of the transport permits has a statutory flavour. As per the lease deed the sub-lessee can enjoy the mining rights without any obstruction from the lessee by payment of royalties and other taxes payable to the lessee at the rates prescribed by the Government from time to time, in the manner prescribed by the lessee from time to time. Admittedly for all these years the petitioner was paying the royalties to the Mining Corporation and the Corporation in turn is to pay to the Government and then apply for transport permits. Therefore, the Government is not directly concerned with the petitioner in the matter of issuance of transport permits. The Government is however under obligation to issue transport permits as and when the sub-lessee makes all the necessary payments to the lessee. But that by itself does not attract the writ jurisdiction.

(20) FOR all the above reasons, we are of the view that the writ is not maintainable. Since lengthy arguments were also advanced that some of the clauses in the lease-deed are in violation of the Rules, we shall consider the same briefly, though it may not strictly be necessary in the above view we have taken. Originally, the prayer in the writ petition was to give an direction to the Corporation to allow the petitioner to apply directly to the assistant Director of Mines, i. e. , the Government of Andhra Pradesh, for transport permits, after paying the royalty, taxes and cases and that the action of the Mining Corporation in insisting that the applications for transport permits should be routed through them, is contrary to rules. Thereafter the prayer was sought to be amended that sub-clauses (i) and (ii)of Clause 1, and the last sentence in Clause 2, viz. , "the royalty, cess and other taxes shall be paid by the sub-lessee to the lessee at the rate prescribed by the Government from time to time in the manner prescribed by the lessee from time to time," Clauses 5, 7, 8, 9, 10, 12, 13, 14, 15 and 16 are null and void as the same are not warranted by the provisions of Rule 27 (1) or rule 27 (2) of the Rules and also violative of Art. 19 (1) (g) of the constitution of India, and they should be struck down. Then, during the arguments, when it was noticed that the lease was not in Form O a further submission was put forward to direct the Government to enter into a fresh agreement in form-O incorporating the necessary clauses as per Rule 27. We do not think that we can accede to this request. The Government has given consent under Rule 37 (1) and in G. O. Ms. No. 215. As already noted, it is mentioned that in consultation with the Andhra Pradesh Mining Corporation and the private pattadar it was decided to sublet in such a way as not to obstruct the objectives of reservation. It is also mentioned therein that "the agreement conditions between the A. P. Mining Corporation and the private pattadars should also be got formally approved by the Government". It can, therefore, be seen that the Government gave its consent subject to the above conditions viz. , that the reservation of the area in favour of the mining Corporation should not be upset and that the agreement should be only between the Mining Corporation and the sub-lessee. The Government did no! enter into a tripartite agreement in Form-O. This is a different form of contract which comes within the meaning of the words "in any other manner" of transfer of lease mentioned in Rule 37 (1) and the contracting parties, viz. , the lessee and the sub-lessee have agreed to this nature of lease and the Government after consultation with the Corporation and being satisfied with all the circumstances gave its consent. We cannot predict whether the Government would have given its consent if these clauses in the lease have not been there. We are unable to accede to the submission of the learned counsel that part of the consent also can be struck off on the ground that it is severable. To give consent or not to give and the circumstances on the basis of which consent was given, are purely for the consideration of the Government. At any rate, we cannot predict and then substitute into or struck off some other clauses in the contract. If the sub-lease is found to be opposed to rules, the whole lease has to be struck off and such an action is not warranted in the instant case.

(21) THE learned counsel for the petitioner, in support of his submission that on the basis of doctrine of severability some of the clauses in the lease-deed and apart of the G. O. Ms. No. 215 giving consent order can be struck off relied on the judgment of the Supreme Court in Mahaboob Shariffs case (supra). As already mentioned, though the lease is not in Form-O, still it cannot be declared as invalid and therefore there is no question of declaring some of the clauses invalid applying the doctrine of severability.

(22) RELIANCE is also placed on a Judgment of the Supreme Court in state of Kerala vs. T. P. Roshana wherein it is observed that "nor is law unimaginative especially in the writ jurisdiction where responsible justice is the goal, and the Court cannot adopt a rigid attitude of negativity and set back after striking down the scheme of Government, leaving it to the helpless government caught in a crisis to make-do as best as it may, or throwing the situation open to agitation chaos to find a solution by demonstrations in the streets and worse", Reliance is also placed on a judgment of the Allahabad High Court in U. P. State Electricity Board vs. Lakshmi Devi wherein it is observed that public corporations have no implied powers to enter into contracts whereby performance of their duties to public is prevented or unduly restricted and such agreements are opposed to the concept of public policy. We do not find any material to go to the extent of holdin g that the conditions of the lease in the instant case are opposed to public policy nor they are arbitrary and the mining Corporation which is a statutory one, is given priority and it is the lessee in respect of these mines, the explorations of which are governed by statutes. The Government also permitted sub-leases or transfer of the same in any other form, by the corporation. The Corporation in the instant case, with the consent of the government, has sublet subject to certain conditions. The petitioner has agreed to these conditions. Now if his request, viz. , that certain clauses should be removed and that the G. O. Ms. No. 215 giving consent should also be modified suitably, it would amount to asking the Court to create a new contract. In our view, under Article 226 of the Constitution, we cannot go to that extent.

(23) THE learned counsel for the petitioner however contended that at least the condition in the lease-deed regarding the fixation of price is arbitrary. Clause 14 is to the effect that the sub-lessee shall undertake to obtain specific prior concurrence of the lessee regarding the sale and rates of barites, lump and powder, from time to time. The learned counsel submits that this affects the right of the petitioner under Article 19 (1) (g) of the constitution. We see no force in this submission. In the first instance, the parties have agreed to such a condition regarding the price. Therefore, they cannot demur later. It must be noted that the mineral is meant for export and the mining operations are restively reserved for the Mining corporation. It is stated in the counter-affidavit that the Corporation which is the dominant producer of Barytes, is interested in maintaining the price level. Vijaya, Lakshmi Barytes is a company in which the petitioner and his family members are partners and the petitioner was selling barytes to that concern at a low price, who in turn used to export. When the petitioner came to know of the Boards disapproval, he sent a proposal to sell his material at the rate of Rs. 190/- per M. T. for A-grade Barytes and Rs. 85/- per M. T. for B-grade Barytes examine. It also appears from the record that so far as the export is concerned, the Government of India fixed a floor price and it is submitted on behalf of the Corporation that it is but reasonable to have this condition so that the sub-lessee cannot sell at a lower price according to his likes and dislikes. However, we are of the view that this is a condition which is agreed upon between the lessee in whose favour the entire mining operations are reserved, and its sub-lessee. Therefore he cannot turn round now and say that this is arbitrary.

(24) THE last submission is that the Government which ultimately controls the Corporation is acting in a mala fide manner in not issuing transport permits regularly and in time, in spite of the sub-lessee complying with all the conditions including payment of royalties, etc. as agreed upon in the sub-lessee. It is stated in the affidavit that the petitioners son was the president of the A. P. Congress Committee (I) and in that capacity he gave several statements which were not to the liking of the leaders of Telugu desman Party and at the instance of these leaders, the first respondent corporation issued a notice with several false allegations complaining that the petitioner has not complied with the terms of the sub-lease, to which he sent a reply. It is further stated that with a mala fide intention of delaying the issue of the transport permits in respect of 5000 M. Ts. of Barytes, the 1st respondent got issued through the Project Manager at Mangampet a letter dated 31-12-1985 seeking certain clarifications to be sent to the head office of the 1st respondent. According to the petitioner, the clarifications were sought only with a view to delay the issue of transport permits for 5000 m. Ts. , which is totally arbitrary and unreasonable and therefore violative of articles 14 and 19 (1) (g) of the Constitution. From these allegations, the mala fides on the part of the authorities cannot be presumed. As already mentioned, the conditions of the lease governed the transaction. The petitioner has agreed for the fixation of the price in concurrence with the 1st respondent Corporation. But when once the petitioner complies with all the necessary conditions and applies for transport permits it is the bound on duty of the 1st respondent Corporation to obtain transport permits, expeditiously. Otherwise, the delay will definitely result in loss to the petitioner. The Government has to issue Transport permits to the Mining corporation promptly on its application for the purpose of enabling the sub-lessee, viz. , the petitioner, to export. Our brother Jeevan Reddy, J. at the time of granting the interim directions noticed this aspect and gave a direction that "within one week of the petitioner applying for transport permits, paying the appropriate amounts in that behalf, the Corporation shall obtain transport permits for the appropriate quantity and deliver to the petitioner". Having regard to the circumstances of the case, we think that such a direction is very salutary and congenial for the improvement of the business. Therefore, as and when the petitioner applies for transport permits after complying wish the necessary conditions by paying royalties, taxes etc. , the 1st respondent-Corporation shall obtain the transport permits for the appropriate quantity within a reasonable time, say a week or ten days, and deliver them to the petitioner. We are constrained to make this observation because the issuance of the transport permits which has statutory flavor, lies with the Government, and unless the Government acts, promptly, the very trade of exporting this valuable mineral gets affected.

(25) SUBJECT to the above directions the Writ petition is dismissed. No costs.

(26) IN view of these orders in the Writ Petition, no separate orders are necessary in the Writ Appeal. Advocates fee Rs. 150/-