The main legal point established in the judgment is the interpretation of Article 12 of the Constitution and the tests for determining whether a body qualifies as a State, emphasizing the principles of deep and pervasive State control and financial, functional, and administrative domination by the Government.

ORDER

1. Leave granted.

2. Having heard the learned counsel for the parties, we are not inclined to interfere with the impugned judgment of the Bombay High Court dated 24th October 2018 in Writ Petition bearing No. 5195 of 2015. The impugned judgment relies upon the earlier coordinate bench judgment of the Bombay High Court in Nandkumar Nivrutti Baptiwale v. Automotive Research Association of India and others, 2002 (2) Mh.L.J 191. which decision, notwithstanding the reliance placed upon Chander Mohan Khanna v. National Council of Educational Research and Training and others, (1991) 4 SCC 578, a decision which has been expressly overruled in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Others,(2002) 5 SCC 1111) correctly applies the tests for determining whether the respondent Association is a State.

3. In Pradeep Kumar Biswas (supra) , the 7 Judge Bench of this Court explicated the tests for determining whether a body comes within the purview of Article 12. Same being:

1) the formation of the body;

2) objects and functions;

3) management and control

4) financial aid, etc.

4. The decision in Pradeep Kumar Biswas (supra) reiterated the law laid down by the 5 Judge Bench decision in Ajay Hasia and others v. Khalid Mujib Sehravardi and others, (1981) 1 SCC 722. wherein this Court has observed that the existence of deep and pervasive State control affords an indication that the body or corporation is a state agency or instrumentality.

5. An earlier judgment of this Court in Ramana Dayaram Shetty v. International Airport Authority of India and others, (1979) 3 SCC 489 . had received the imprimatur of A jay Hasia (supra) as to when a corporation can be said to be an instrumentality or agency of the government:

" (1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (SCC p. 507, para 14)

(2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character. (SCC p. 508, para 15)

(3) It may also be a relevant factor ... whether the corporation enjoys monopoly status which is State-conferred or State-protected. (SCC p. 508, para 15)

(4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (SCC p. 508, para 15)

(5) If the functions of the corporation are of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (SCC p. 509, para 16)

(6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference' of the corporation being an instrumentality or agency of Government. (SCC p. 510, para 18)"

6. It is to be observed that the determination of a body as a State' is not a rigid set of principles. What is to be seen is whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government, albeit if the control is mere regulatory, whether under statute or otherwise, it will not serve to make the body a State. Also, the presence of some element of public duty or function would not by itself suffice for bringing a body within the net of Article 12.¹[See, Zee Telefilms Ltd. and another v. Union of India and others, (2005) 4 SCC 649]

7. We would now apply the aforesaid test to the respondent Association by referring to its Memorandum of Association and other relevant facts. In particular, we will examine the restrictions relied upon by the appellant.

8. It is an undisputed position that the government did not have any say in forming and establishing the respondent Association, which came into ex