The main legal point established in the judgment is the application of the tests laid down by the Hon'ble Supreme Court to determine if an entity qualifies as a State or its instrumentality or agency within the meaning of Article 12 of the Constitution of India.

Govind Mathur, J.-The petitioner, a company registered under the Companies Act, 1956, carries on business online through V-SAT.

2. The Respondent No. 1 was incorporated under the Companies Act on 20.12.2001 in the name of Online Commodity Exchange of India Ltd. and its name was changed to "National Multi Commodity Exchange of India Ltd." on 23.01.2003. It is carrying on business of organising, managing, regulating and facilitating the operations of exchange members and transactions of forward trading in permitted commodities through online trade quotation system and settling system.

3. The petitioner being member of the Respondent No. 1 since 2002 is having commercial relationship with it. The Respondent No. 1 collected a special margin of Rs. 30,35,443/-from the petitioner in first week of August, 2003 and out of that an aggregate sum of Rs. 20 lacs was released on liquidation of short open outstanding position by the petitioner.

4. The grievance of the petitioner is that the Respondent No. 1 in spite of the liquidation or fulfilling of short open outstanding position is not releasing and making refund of balance special margin i.e. in the tune of Rs. 10,35,443/-. The Respondent No. 1 has also suspended trading facility of the petitioner w.e.f. 07.06.2004, hence this petition for writ is preferred.

5. An objection to maintain this petition for writ is raised on behalf of the Respondent No. 1 in

following terms:-"the writ petition is not maintainable against the Respondent No. 1 as the answering respondent is neither a state nor an instrumentality of state, falling within the ambit of Article 12 of the Constitution of India."

6. To meet the objection above it is contended on behalf of the petitioner that the business of the Respondent No.1 is regulated under the Forward Contract (Regulation) Act, 1952 (hereinafter referred to as "the Act of 1952") being registered and recognised under it and as such is an authority within the meaning of Article 12 of the Constitution of India.

7. It is emphasized by the petitioner that the Respondent No. 1 being controlling forward contracts in permitted commodities functions under supervision, control and guidance of "Forward Marketing Commission" established under Section 3 of the Act of 1952. The functioning of the Respondent No. 1 is for public purpose, therefore, it is an authority and is amenable to writ jurisdiction of this Court. To substantiate the contention, reliance is placed by Counsel for the petitioner upon the Judgment s of Honble Supreme Court given in the case of Ajay Hasia vs. Khalid Mujib Sehravardi & Ors., AIR 1981 SC 487, and in the case of Pradeep Kumar Bishwas vs. Indian Institute of Chemical Biology, 2002 (5) SCC 111.

8. The issue, therefore, before this Court is the National Multi Commodity Exchange of India Ltd. (Respondent No. 1) is an authority within the meaning of Article 12 of the Constitution of India.

9. Honble Supreme Court in the case of Ajay Hasia (Supra), summarised the relevant tests for determining as to whether the body concerned is or not a state, its instrumentality or agency as under:-

"(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."

.(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."

.(3) "It may also be a relevant factor………. whether the corporation enjoys monopoly status which is the State conferred or State protected."

.(4) "Existence of "deep and pervasive State control may afford an indication that the Corporation is a State agency or instrumentality."

.(5) "If the functions of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the corporati