( 1 ) THE question referred to the Division Bench by a learned Single Judge of this Court is as to whether Army Welfare Housing Organisation (for short awho ) is a State within the meaning of Article 12 of the Constitution of India and is such is amenable to writ jurisdiction of High Court.

( 2 ). In order to appreciate this question we have looked into memorandum of article of association of the society as AWHO is a society registered under the Societies Act, 1860. The name of the society is Army Welfare Housing Organisation. The registered office of AWHO is to remain within the territory of Delhi and was located in room Nos. 208, 209 and 211, 2nd floor. South Block, Adjutant General Branch, Army Headquarters, New Delhi. The aims and objects of the AWHO are :

(A) To promote housing scheme as welfare measure in the army/ exservicemen to provide cheap houses to them at place of their choice in India and to stare pilot project in Delhi and its selected towns immediately;

(B) To facilitate relief to the existing deficienies of Government accommodation at various stations in the country and to provide suitable re-habilitation opportunities in the said category ;

(C) To offer accommodation at no profit/no loss basis; and

(D) All the activities of the AWHO as mentioned above, (a) to (c) are to be carried out without any profit nature.

( 3 ). The AWHO has a Board of Management consisting of:

(1) Adjutant General (Lt. General ). (2) Quarter Master General (Lt. General ). (3) Engineer-in-Chief (Lt. General ). (4) Deputy Adjutant General (Major General ). (5) Director Personnel Service (Major General ). (6) Director Quartering (Brigadier ). (7) Deputy Director Works (Brigadier ). (8) Managing Director (Major General ). (9) Secretary (Lt. Colonel ). All the aforesaid office bearers are senior serving officers of the Army and aroex-officie members of the Board and with every change of the holder of that paiticular office, his sucecssor take his place on the Board suo-moto.

( 4 ). In order to decide the question it would be useful to refer to the guidelines laid down by their Lordships of the Supreme Court. We would first refer to the decision in "ajay Haisa etc. v Kfhalid Mujib Sehravardi and others". AIR 1981 SC 487. Afterlaying down six tests in paragraph 9 of the report their Lordships further held in paragraph as under:

"we may point out that it is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not us to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever Be its genetical origin, it would been "authority" within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression "authority" in Article 12". The same view was reiterated in "mc Mehta and another v. Union of India and Others", air 1987 SC 1086. The relevant paras from the aforesaid Ajay Hansia s case from pages 492, 493 and 494 were cited with approval. "andi Mukta Sadguru Shri Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and others v. V. R. Rudani and ethers", AIR 1989 (2)SCC691 is the latest case on the subject. In pa