B. L. HANSARLA, C. J. ( 1 ) IS Tribal Development Co-operative Corporation of Orissa Limited (T D. C. C.) a 'stale'within the meaning of Article 12 of the Constitution? is the question which is required to he determined by us in this reference. Though a Bench of this Court in Baikuntha Swain v. Tribal development Co-operative Corporation of Orissa Ltd. , (OJC No. 521 of 1983, disposed of on 13-4-1990) had answred the question in negative, when this question came up before anot ier Bench, in this case necessity of 'another look' on the matter was thought marked for the reasons incorporated in the referring order dated 12-10-1990. It is because of this that we have heard the matter at length after providing full opportunities to all concerned to place before us all nesessary materials and to assist us otherwise in answering this important question. It is a matter of great satisfaction to us that we received valuable assistance from learned counsel of all the parties and We put on record our appreciation for the same. ( 2 ) THE question as to whet a body can be regarded as an instrumentality of the State has been subject-matter of a large number of decisions of the apex Court. For the case at hand, it is not necessary to traverse the entire ground inasmuch as the petition of law as accepted today is nota matter of debate. Though initially (he Supreme Court was taking rather a restricted view of the matter, as would appear from the decisions in Rajasthan state Electricity Board v, Mohan Lal, AIR 1967 SC 1857 and Prage Tools corporation v. C. V. Imanual, AIR 1969 SC 1306 , it started taking a broader view from the case of Sukhdev Singh v. Shagatram, AIR 1975 SC 1331 , in which Oil and Natural Gas Commission. Life Insurance Corporation of india and Industrial Finance Commission were held as 'authorities' as visualised by Article 12 and as such 'state' The decision in Sukhdev Singh's case, more particularly the view take by Mathew, J. in that case, paved the way for the thinking in Ramana Deyaram Shetty v. The International Airport authority of India, AIR 1979 SC 1528 , which is a landmark decision on this aspect of the matter. Then came the case of Som Prakash Rekhi v. Union of India, AIR 1981 SC 212 , in which the matter received a deep therapy at the hand of Krishna Iyer. J, which was dicided on 13-11-1980, on which date itself a Constitution Bench delivered the judgment in Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487 , in which Bhagwati, J. (as he then was)through whose pen had come Ramana Dayaram, speaking for the Bench, turned a new leaf ID this branch of law. It may be stated that Krishna Iyer, j. had sat in the bench of Ajay Hasia also. It is not known as to whether because of this, the two noted constitutional authorities of the country thought in the same way, or it may be because both of them drew beavily from the case of Ramana Dayaram. I have said so because the tests which have been laid down in these two cases to determine whether an instrumentality or body can be regarded as 'state' or not, are almost identical inasmuch as in Som Prakash Rekhi the following tests were laid down. ""1. One thing is clear that t if the entire share capital of the corporation is held by Government, it would go a Jong way towards indicating that the corporation is an instrumentality or agency of Government. 2. Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. 3. It may also be a relevant factor. . . . . . . . . . . . whether, the, corporation enjoys monopoly statute which is State conferred or State protected. 4. If the functions of the corporation are of public importance and closely related tj Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality "or agency of Government. 5. 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. "in Hasia also, Bhagwati, J. sppke about the aforesaid five tests to, which one more was added, namely,"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. "in Hasia also, Bhagwati, J. sppke about the aforesaid five tests to, which one more was added, namely,"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 be stated that in Ajya Hasia the Court had examined the question as to whether the Regional Engineering College, Srinagar, which was registered under the Jammu and Kashmir Registration of Societies ACT, 1898, was a 'state' or not whereas in Som Prakash Rekht, the, question 'was whether Bharat Petroleum Corporation Ltd. was a 'state' or not. It would be apposite to state here that in Som Pakash Rekhi it was stated at a number of places that whether the entity is one created by a statute" as distinguished from under a statute has no importance in this regard and what matters is functionality plus State control. Same view was taken in Ajya Hasia. ( 4 ) THE above noted tests laid down in the aforesaid cases have been followed during the last more than ten years in innumerable decisions by the apex Court and the High Courts of the country. It is, therefore, not necessary to burden this judgment with what was stated in these decisions. (At appropriate places we shall, however, refer to these decisions to bring home a point or two), it would be sufficient if reference is made to the latest decision of the Supreme Court in Chander Mohan Khanna v. National council of Educational Research and Training, AIR 1992 SG 76, in which it was stated as below in paragraph 3 ;"article 12 should not be stretched so as to bring in every autonomous body which has some nexus, with the Government within the sweep of the expression 'state' A wide enlargement of the meaning must be tempered by a wise limitation. It must not be lost tight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as 'state' under Article 12. The State Control, however vest and pervasive, is not determinative. The financial contribution by the State is also not conclusive. It must not be lost tight of that in the modern concept of Welfare State, independent institution, corporation and agency are generally subject to State control. The State control does not render such bodies as 'state' under Article 12. The State Control, however vest and pervasive, is not determinative. The financial contribution by the State is also not conclusive. The combination of State and coupled with an unusual degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is 'state', If the government operates behind a corporate veil, carrying out governmental activity and Governmental functions of vital public importance, there may be little difficulty in identifying the body as 'state' within the meaning of Article 12 of the constitution. . . . . . . . . " ( 5 ) THE above shows that the question whether an entity can be regarded as an instrumentality of the State would depend upon various factors, which would be individual to each ease This apart, there is no single factor which can be held lo he conclusive in this regard An overall view is to be taken keeping in mind the interplay of the aforesaid tests without allowing any particular factor to determine the question It is because of this that it was rignlly observed, if we may say so with respect by a Full Bench of this Court in Banabehari Tripathy v Registrar of Cooperative societies, 67 (1989) CLT 5 (to which we shall refer in detail afterwards) that the essential tests cannot be put in a "strait jacket formula" the same view had been taken by a Bench of this Court in B. Rajkumar v union of India, 51 (1981) CLT 487, by observing at page 447 that'no particular test has a predomment role to play and it is the cumulative effect which has to be looked into. ( 6 ) THE aforesaid being the position in law, we shall make two observations before proceeding further. ( 6 ) THE aforesaid being the position in law, we shall make two observations before proceeding further. The first is that though learned counsel for the parties drew our attention to a large number of decisions of different High Courts on the question as to when a particular co-operative society was regarded by them to be a 'state' within the meaning of Article 12 of the Constitution or not, we are not referring to those decisions because as already stated, such a question has to be decided on the facts of each case keeping in view the statutory provisions governing the entity its funding source, its activities, nature and status of its activities and nature and control exercised by the Government on the entity, which factors are bound to vary from case to case So, the decision of any particular high Court holding the body before it to be a 'state' or not by applying the aforesaid tests would not help us to answer the question whether the entity before us can as well be regarded as a 'state'. The different High Court having applied the tests mentioned in this regard in the cases of Som Prakash rekhi and Ajay Hasia to the entities before them, what we have to do is to find out whether on the basis of the tests formulated in the aforesaid cases t. D. C. C. can be regarded as a 'state'. No useful purpose shall therefore be served by lengthening this judgment by noting the views expressed by the different High Courts regarding the question at hand while examining the same in regard to the entities which were before them. ( 7 ) SECONDLY, we would observe that we would confine our attention whether T. D. C. C. can be regarded as a 'state' For this purpose, it is not necessary at all to decide the general question as to whether all co-operative societies would be 'state'. ( 7 ) SECONDLY, we would observe that we would confine our attention whether T. D. C. C. can be regarded as a 'state' For this purpose, it is not necessary at all to decide the general question as to whether all co-operative societies would be 'state'. From what has been stated above, it is abundantly clear that this question has to be answered with reference to a particular society keeping in view the above-mentioned aspects of the case because of which there cannot be a general answer to the question whether each and every co-operative society can be or cannot be regarded as a 'state', ( 8 ) DESPITE what has been stated in paragraph 6 above, it would be meet and proper to have a look as to what this Court had said on earlier occasion when seized with similar question, though in this reference we have to answer this point qua the T. D. C. C , which had specifically come up for consideration in the case of Baikuntha Swain (supra) only. We have taken this decision to examine the precedents of this Court, as every Bench is required to keep in mind for deciding a case, the earlier rulings of the Court having a bearing on the subject, so that its views do not clash with that of any other Bench. This caution is necessary to prevent confusion and controversy which may result if different views in a matter are taken by different benches of the same High Court. ( 9 ) THE first case of this Court which has come to our notice is that of Narayan Rath v. Registrar of Co-operative Societies, 1970 ILR (CUTT) 437. In that case, a contention was raised that a writ cannot be issued against the Nayagarh Co-operative Central Bank. The Bench answered the question in affirmative by stating as below at pages 449 and 450 :"the Nayagarh Co-operative Central Bank in the instant case is a society which has been registered under the Co-operative societies Act. Like companies incorporated under the Indian companies Act, the Society registered under the Co-operative societies Act, is a juristic person and begins to function as an entity from the time of its registration. The Society is governed by the provisions of the Co-operative Societies Act. Like companies incorporated under the Indian companies Act, the Society registered under the Co-operative societies Act, is a juristic person and begins to function as an entity from the time of its registration. The Society is governed by the provisions of the Co-operative Societies Act. There is a strict control exercised by the Registrar and all persons appointed by the State to assist him in the matter of constitution of the Managing Committee, Board of Directors, amendment of bye-laws and framing and imposing of subsidiary rules on the society which the society is bound to obey. There are provisions which provide for interference by the Registrar in cases of disobedience of his order legally issued under the various sections of the Act. In the present case, as has been stated earlier, the subsidiary rules lay down the service conditions of the employees including that of the petitioner Those rules govern the society as well as its employees. Similarly, the bye-laws of the society are framed under the authority of law. Neither the bye-laws of the society nor the subsidiary rules framed by the registrar and adopted by the society can be treated as mere contractual rules because the consent for foundation of the contract is absent in framing these rules. They give rise to rights in favour of the petitioner, and impose corresponding obligation on the society and its management The Society can, therefore, be compelled to carry out its obligations under the act and bye-laws and the rules framed thereunder by appropriate authority- Therefore, we are of the opinion that the last point regarding the maintainability of the writ application fails. " ( 10 ) AN appeal was preferred against this judgment and the same became the subject-matter of Nayagarh Co-operative Central Bank Ltd. v. Narayan Rath, AIR 1977 SC 112 . The Supreme Court did not approve the view taken by this Court and observed as below in paragraphs 5 and 6 :"5. The High Court has dealt with the question whether a writ petition can be maintained against a co-operative society, but we are inclined to the view that the observations made by the high Court and its decision that such a writ petition is maintainable are not strictsy in accordance. with the decisions of this court. The High Court has dealt with the question whether a writ petition can be maintained against a co-operative society, but we are inclined to the view that the observations made by the high Court and its decision that such a writ petition is maintainable are not strictsy in accordance. with the decisions of this court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as respondent No. 1 by his writ petition was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by the Cooperative societies Act. The writ petition was in. that view maintainable. 6. We would like to observe that the judgment of the High Court should not be. treated as an authority for the proposition that a writ petition is maintainable against a co-operative society. That question shall have to be decided by the High Court as and when it arises in the light of the decisions of this Court " ( 11 ) IN view of the aforesaid pronouncement of the apex Court, we would have been perhaps not required to say anything further on the question at. hand ; but then, the qualitative change brought about in the concept of State* by subsequent decision of the Supreme Court, starting specially from Ramana Dayaram to which we have referred earlier, what was opined in the aforesaid case cannot be taken to be the end of the matter. We shall have to pursue it further and see whether on the touchstone of the tests specifically mentioned in Som Prakash Rekhi and Ajay Hasia, the t. D. C. C. can be regarded as a 'state'. ( 12 ) THIS takes us to the next decision of this Court which was rendered in Pitambar Mohapatta v. Nilatnbar Sahu, 36 (1970) CLT 866. In that case, Soro Carpentry Industiy Co-operative Society Ltd. was not held to be an instrumentality of the Mate principally for two reasons ; (1) the society was not a department of the Government or a statutory corporation, but a private juristic person, and (2) it did not exercise any public function vis-a-vis the employees, one of whom was before the Court. ( 13 ) AS to the first reason, it is sufficient to state whether a body is statutory corporation or not has ceased to be of relevance in view of what has been stated in this regard in Som Prakash Rekhi and Ajay Hasiat wherein it has been observed that it is of no importance in ibis regard as to whether the entity is one created by a statute, as distinguished from under a statute, but what matters is lunctionality plus State control. It was specifically observed in Som Prakash Rekhi that "there is no reason to make exclusions on sophisticated grounds, such as, that the legal person must be a statutory corporation. . . . . . . . . " As to the next reason, we would say with respect that the relevant question to be examined is not. whether the entity is exercising public function vis-a-vis its employees, but there the work undertaken by us can be said to be in the nature of public function. ( 14 ) FOR these reasons the view taken in this case cannot be regarded to be either binding or even persuasive. ( 15 ) THE third case in sequence of time is that of Narayan Rath v. Nayagarh Co-operative Central Bank Ltd. , 43 (1977) CLT 119. The sole ground on which the status of 'state' was denied to the Co-operative Central bank in question was that it was not created by any statute to which it owed its existence Though that was the legal thinking prevailing at the time, as would appear from the cases of the apex Court noted in that decision, as already stated there is a distinct departure in this regard after judgments in Som Prakash Rekhi and Ajay Hasia were delivered. So, this case also has lost its binding force. ( 16 ) IT was for the first time in Chakradhar Patel v, Sama Singha Service co-operative Society, 53 (1982) CLT 57, that this Court examined the question at hand by applying the tests laid down in. Som Prakasn Rekhi and held that the society at hand was not a 'state'. This case has, therefore, its importance and we have to see as to why the aforesaid view was taken in that case. Som Prakasn Rekhi and held that the society at hand was not a 'state'. This case has, therefore, its importance and we have to see as to why the aforesaid view was taken in that case. Before applying the tests mentioned in Som Prakash Rekhi, this Court first applied its mind, being seized with a case of termination order by the president of a co-operative society, to the question whether the service under a co-operative society could be regarded in the nature of public employment, in which case a writ Court can grant the relief of reinstatement by enforcing even a contract of personal service, in view of what was stated in several judgments of the apex Court noted in that case. The Bench came to the conclusion, that as a co-operative society could not be regarded to be a statutory body, the relief of reinstatement could not be given. It is in this context that it was stated that the employment under the society could not be regarded as one of public employment This reason given by the Bench may not detain us, because whether a body is statutory or not has lost its. relevance as a test for reason already given. This apart, the question whether the relief of reinstatement can be granted to an employee of a cooperative society is not the one with which we are seized. That aspect of the matter would be examined by the Bench before whom the case would be placed to give its view- on the merits, inasmuch as grievance in this case also is about the termination of the service of the petitioner by the T. D. C C. ( 17 ) LET us now see in to why on the touchstone of the tests mentioned in Som Prakash Rekhi it was said that the Society in question was not a state. As to this, we find that after quoting the tests, the only observation made at page 67 was : "these obviously would not exist in the case of a co-operative society as here". We are denied the benefit of knowing as to why this observation was made. There is no discussion at all) on this subject. So, we say with respect that what has been stated in this regard in Chakradhar Patel (supra) can have no persuasive value. We are denied the benefit of knowing as to why this observation was made. There is no discussion at all) on this subject. So, we say with respect that what has been stated in this regard in Chakradhar Patel (supra) can have no persuasive value. ( 18 ) THIS takes us to the Full Bench case of Banabehari Tripathy, 67 (1989) CLT 5. There in, Agarwal, C. J. , reviewed the legal position, and after noting the tests laid down in Ajay Hasia's decision, applied the same to the facts of the cuse and came to the conclusion that the Khurda Central co-perative Bank could not be regarded as an instrumentality of the State. What is of importance to us is to note the conclusions arrived at by the Full bench relating to the legal position. ( 19 ) THE Full Bench applied its mind to two questions as noted at page 8 : (1) "whether the Co-operative Societies registered under a Cooperative socicties Act as such will come within the fold of article 12 of the Constitution of India and are amenable to the writ jurisdiction of the High Court? (2) Whether the Co-operative Society is borne under any statute or is discharging any such functions which may make it 'an instrumentality of the State' ? (Second question is recasted)"the answers to the above queslions find place at page 24, which are as below :"answer to question No. 1-A co-operative society on merely getting registered under the Co-operative Societies Act does not acquire any status of becoming an authority to render it amenable to the writ jurisdiction of the High Court. The supervisory power given to the Registrar is with the object of better working of the societies and to give them guidance of well trained and expert officers. Answer to question No, 2 If a co-operative Bank is borne under or created by statute, then it may acquire the status of an authority' within the meaning of Article 12 of the Constitution. Otherwise, it has to satisfy the essential tests formulated by the various decisions of the Supreme Court for which, however, there cannot be a strait jacket formula. However, it may not be necessary that the society must satisfy all the tests for qualifying to be an, 'authority' and in a given case, only some of the prominent features may give it that status. However, it may not be necessary that the society must satisfy all the tests for qualifying to be an, 'authority' and in a given case, only some of the prominent features may give it that status. But that must be so predomi-nent that on tearing the veil, it may appear that the society is merely a projection of the State, the voice being that of the state and the hands also of the State. " ( 20 ) WITH respect, we agree to the legal propositions contained in the aforesaid answers. We shall have, therefore, to see whether on the facts of the present case, it can be said that the T. D. C C, is "a projection of the state, the voice being that of the State and the hands also of the State". In doing so, we shall also make our own observations regarding the nature of the power given to the Registrar by the Orissa Co-operative Societies act, 1962 (hereinafter, 'the Act' ). As that case had dealt with the characteristic of the Khurda Central Co-operative Bank after analysing the various aspects relating to that bank, which were relevant to decide the point in controversy, the conclusion arrived at in that case on facts cannot throw any light on the question with which we are seized. ( 21 ) BEFORE we come to the Bench decision in Baikuntha Swain's case (supra) in which the T. D. C. C. was held to be not a 'state', we have to refer to a singls Bench decision of this Court in Managing Director v. Natabar mohanthy, AIR 1989 Ori. J89. In that case, a view was taken after referring, inter alia, to Som Prakash Rekhi' Ajay Hasia and Banabehari Tripathy (supra) that the co-operative society at hand was not a 'state'. J89. In that case, a view was taken after referring, inter alia, to Som Prakash Rekhi' Ajay Hasia and Banabehari Tripathy (supra) that the co-operative society at hand was not a 'state'. The reasons for the same are contained in paragraph 7 of the judgment, a perusal of which shows that the learned Judge came to the conclusion that the management of the society was not controlled by the Government; there was nothing to show if the entire expenditure of the society was met by the financial assistance of the Government; no monopoly status had been conferred on the society ; nor could its function be stated to be related to government functions and as to the deep and pervasive control also, it was held that the same was under the control of a committee, majority of whom were elected members of a society. There can be no dispute that if this be the position, a society cannot be regarded as a 'state'. ( 22 ) THIS takes us to the case of Baikuntha Swain. The Bank in that case, after referring to Chakradhar Patel, (53 (1982) CLT 57), Banabehari tripathy, (67 (1989) CLT 5), and Natabar Mohanty, ( AIR 1989 Ori. 189 )examined the bye-laws of the DCC to find out if the tests mentioned in the aforesaid cases regard an entity as an instrumentality of the State were satisfied are not. ( 23 ) (A ). At first, reference was made to Bye-law No. 7. which indicated that 49,800 shares of Rs. 100/- each were allotted to primary co-operative societies ; Rs. 95,000/-special class shares of Rs. 1,000/- each were allotted to Government Pancbayat Samitis and other statutory bodies : and Rs. 20. 000/- nominal shares of Re. 1/-each to individuals having transactions with the T. D. C C This being the provision regarding share capital in bye-law No. 5, the Bench concluded : "it is difficult for us to accept the submission of Mr. Das for the petititione that the entire share capital of the Corporation is held by the Government. " (B) Reference was then made to Bye-law No. 15 dealing with "managing committee" stating that the managing committee shall consist of 15 members, of which 7 would be elected from amongst the affiliated societies : 4 from amongst the Panchayat Samitis ; 3 to be nominated by the Government apart from the Managing Director. " (B) Reference was then made to Bye-law No. 15 dealing with "managing committee" stating that the managing committee shall consist of 15 members, of which 7 would be elected from amongst the affiliated societies : 4 from amongst the Panchayat Samitis ; 3 to be nominated by the Government apart from the Managing Director. It was then observed that "this clearly indicates that the control and management of the society vests in the managing committee, of which the majority of the members are not government nominees though the Managing Director is appointed by the government. This would not constitute a deep and pervasive control of the State Government with regard to the affairs of the Corporation". (C) Lastly, attention was paid to Bye-law No, 14 dealing with the subject of "general Body" in whom the final authority vests, It was then noted that under that Bye-law, the General Body consists of (i) delegates representing member-societies, (ii) members of the managing committee nominated by the State Government ; and (iii) delegates representing panchayat Samitis and local bodies which are members of the Corporation. (D) After having examined the aforesaid clauses of the Bye-laws, it was opined that the T. D. C C. was also a "society formulated akin to the societies which were considered by this Court in the (aforesaid) Full Bench case as well as in Chakradhar Paters case. . . . . . . . and, therefore, not a 'state' within the meaning of Article 12 of the Constitution". ( 24 ) IT is the correctness of the aforesaid view which we are required to examine in the present reference, Let us see, on the basis of mass of material placed before us, which of the factors required to be borne in mind ip this connection are in existence in so far as the T. D. C, C. is concerned ; and whether on the basis of the factors found present, can it be said that t. D. D. C, is a 'state'. (A) Share Capital of T. D. C. C. : While dealing with this factor in baikuntha Swain, reference was made to Bye-law No. 7 whose purpose we have noted above. But from the additional counter affidavit filed on behalf of the T. D, C. C, on 28-8-1991, we find that the Government holds share capital to the tune of Rs 8. But from the additional counter affidavit filed on behalf of the T. D, C. C, on 28-8-1991, we find that the Government holds share capital to the tune of Rs 8. 79 crores out of the paid up share capital of Rs. 9. 97 crores, as averred in para 5. 1 of that affidavit. The remaining amount of about Rs. 1. 20 crores represented the investments made by the panchayat Samities Primary Co-operative Societies and individuals as stated in para 4 (i) of the additional affidavit of the t. D. C. C. filed on 24-9-1991. The above shows that about 88% of the share capital is hold by the Government. How much of importance we should give to this factor for the purpose at hand remains to be seen. It has been observed in the recent case of Chander Mohan Khanna (supra) that the financial contribution by the State is not conclusive. In this connection, we may also refer to Takraj Vasandi v. Union of India, AIR 1988 sc 469 , wherein the fact that contribution to the society in question from the Government was substantial, so much so that the same constituted the main source of functioning, was not given much importance as money had been coming from other sources also. (B) Deep and pervasive State Control:- (1) The Baikuntha Bench noted in this connection Bye-law No. 15 dealing with managing committee as per which that committee has to consist of 15 members of which 7 are to be elected from the affiliated societies. 4 from panchayat samities, 3 to-be nominated by the Government apart from the Managing Director. In this view of the matter, that Bench opined that there was no deep and pervasive control of the State Government over the Corporation, That bench also took note of Bye-law No. 14 dealing with the subject of "general Body" in when the final authority vests. It was noted that this Body under the concerned Bye-law consists of (i) delegates representing member societies, (ii) members of the managing committee nominated by the State Government, and (iii) delegates representing panchayat samities and local bodies which are members of the Corporation. Having noted this, the bench concluded that there was no deep and pervasive control of the State Government, (II) This conclusion of the Bench has been seriously assailed before us. Having noted this, the bench concluded that there was no deep and pervasive control of the State Government, (II) This conclusion of the Bench has been seriously assailed before us. One particular fact which has a very great bearing on this aspect of the matter was not brought to the notice of the baikuntha Bench. The same is that by virtue of the order dated 24-11-1. 987 (Annexure-B), issued in exercise of power conferred by Section 123 of the Act, the provision of Section 31 (1) of the act (dealing with the subject of nominees of the Government on the committee of a society) was modified in its application to the T. D. C. C. by sating "all the members of the Managing committee of the Tribal Development Co-operative Corporation shall be nominated by the Government". Not only this, the t. D. C. C. was exempted from the provisions of Section 28-A of the Act dealing with the procedure of election of the president and members of a committee of the society. From the affidavit filed on behalf of the State Government (opp. party No. 3) on 9-9-1991, we further find that all the members of the Managing committee are being nominated by the State Government. The latest notification on the subject is dated 10-8-1990 (Annexure A/3 ). (III) Because of the above, the view taken in Baikuntha on this aspect of the matter cannot be sustained, Though in this connection it has been urged by Shri Ray appearing for the t. D. C. C. that amongst the nominated members there are non-officials also because of which it cannot be stated that the government officials alone exercise control over the T. D. C. C. , we do not think if this aspect of the matter has importance in-asmuch as being nominees of the Government, the non-officials also have to too the thinking of the Government. (IV) Shri Mallik, who has received great assistance from Shri Misra has in this regard referred us to Section 134 of the Act also which has conferred the rulemaking power on the State Government to carry out the purpose of the Act. (IV) Shri Mallik, who has received great assistance from Shri Misra has in this regard referred us to Section 134 of the Act also which has conferred the rulemaking power on the State Government to carry out the purpose of the Act. We do not think if because of this power we would at all be justified in reading any control of the Government over the working of the T, D. C. C. inasmuch as in innumerable statutes such a power is conferred on the State Government, and to regard the same as a facet of control would enlarge the concept of control to such an extent that it would cease to carry any significance. (V) Shri Ray, however, submits that as the final authority relating to the working of the T. D. C C. vests in the General Body, the fact that the Managing Committee is constituted of members all of whom are nominated by the Government, would not matter, as the General Body can undo the decision taken by the managing Committee. Let us, therefore, see as to what is the actual position of the General Body of the T. D. C C. It may be first pointed out in this connection that the T. D. C. C. is an apex body which fact is recognised in Annexure 19 dated 11-6-1979 dealing with the subject of integration of L. A. M. P. S. (Large-sized Multi Purpose Co-operative Society) with the t. D. C. C. The expression "apex Society" has been defined in Section 2 (a) of the Act as meaning ". . . . . . . . . a society having the whole of the State of Orissa as its area of operation and consisting of societies as its members, and declared as such by the Registrar : provided that such society may have individuals and other bodies corporate as nominal or associate members, as the case may be:" (VI) Now, as per Bye-law No. 14, the General Body has to consist of three catego ies of delegates about, which reference has been made above, the first of which represents member-societies. The word 'society' has been defined in Section 2 (k) of the Act meaning ''a co-operative society". Let us, therefore, see whether in the present case co-operative societies exist who could send their delegates as constituents of the General Body. The word 'society' has been defined in Section 2 (k) of the Act meaning ''a co-operative society". Let us, therefore, see whether in the present case co-operative societies exist who could send their delegates as constituents of the General Body. In this connection our attention has been invited by Shri Ray to Annex-ure-A which contains a list of share-holders numbering 274 among whom we find that the majority are the Presidents of different L. A. M. P. S. As to this, the submission of Shri mallik is that L. A. M. P. S. have ceased to exist as independent entitles after these bodies were integrated with the T. D. C. C. as per Annexure 19 dated 11-6 1979. A perusal of Annexure 19 shows that it incorporates Government decision that "in the sub-Plan areas of the State the T. D, C. C. will function as an apex Body with the L. A. M. P. S. as its primaries so far as procurement of minor forest produce and surplus agricultural produce and distribution of consumer goods are concerned". From this decision, to implement which various directions were incorporated in Anrtixure 19, we would be hesitant to come to the definite conclusion that L. A. M. P, S ceased to exist as. independent entities as these bodies could not have sent any of its presidents as members of the General Body of the T D. C. C. though what is submitted by Shri Mallik may be tenable. (VII) The rest of the share-holders whose names have been given in annexure-A are the Presidents of certain Panchayat Samities. The contention of Shri Mallik in this connection is that these panchayat Samities rot being co-operative societies have to be regarded as nominal or associated members of the T. D. C. C. in view of the definition of 'apex Society' (which the T D. C. C. is) as given in Section 2 (a) of the Act which we have noted above. Now, the significance of this fact is that a 'nominal member' is not entiiled to attend the General Body of the society because of what has been mentioned in Section 18 (2) (b)of the Act. This apart, by virtue of what has been stated in the proviso (a) to Section 20 of the Act, a nominal or associate member has no right to vote. This apart, by virtue of what has been stated in the proviso (a) to Section 20 of the Act, a nominal or associate member has no right to vote. As, however, decisions of the general Body are required to be taken in accordance with the majority of votes of the members present and voting as stated in bye-law No. 14 (j) (i), if the Presidents of the Panchayat samities cannot cast their votes, their views do not count in so far as the decision which has to be taken by the General Body, (vii-a) In this connection we have noted that as per Section 16 (1) of the Act, apart from the four categories of persons mentioned in clauses (a) to (d) of this section, "any other person, as may be prescribed", of which reference is made in clause (e) can also be a member of a society. The definition of the word 'prescribed' as given in Section 2 (b) of the Act is "prescribed by the rules made under this Act". The Orissa Co-operative Rules, 1965 are such rules. Rule 16 of these Rules dealt with the question as to who may be members of a society under Section 16 (1) (a) of the Act and it speaks inter alia about "panchayat samiti" These provisions would show that a Panchayat Samiti can also be a member of a co-operative society. A perusal of the Bye-laws of the T. D. C. C. would also show that Panchayat samities can be members of the T. D. C. C. in view of the definition of this word in clause 2 (g) of the Bye-laws. The definition of the word 'member' as given in Section 2 (f) of the act includes "as nominal and an associate member". On reading of these provisions together, along with what has been stated in Section 2 (a) of the Act whose purport we have noted above, there can be no manner of doubt that Panchayat Samities have to be regarded as nominal or associate members of the t. D. C. C. Whether Panchayat Samities would come within the definition of "nominal member" or "associate member" has no relevance for the case at hand inasmuch as under Proviso (a)to Section 20 of the Act, right of vote is denied both to a "nominal member" and an "associated member". (VIII) In view of the above, the fact that the final authority of the t. D. C. C. vests in the General Body cannot dilute the control exercised by the Managing Commitree over the affairs of the t. D C. C. all of whose members are nominated by the State government. We would, therefore, hold that the Government does exercise a deep and pervasive control over the working of the T. D. C. C. The further question is regarding the weight to be attached to this fact. It has been stated in recent decision of chander Mohan that "the State control, however vast and pervasive, is not determinative". In Tekraj, this fact was dealt with by stating in paragraph 20 that in a welfare State the governmental control is very pervasive and in fact touches all aspects of social existence. So, it was desired that much importance may not be given to this aspect, otherwise there is possibility of turning of every non-governmental society into an agency or an instrumentality of the State. (IX) Before concluding this aspect of the case, we have to say something about the nature of control exercised by the Registrar over any co-operative society. We have to deal with this aspect despite the position that in the present reference we are concerned only with the question whether the T. D. C. C. is a 'state'. As, however, the T. D. C. C. is also a co-operative society, the provisions of the Act dealing with the powers of the Registrar over the societies have to be looked into to decide the extent and nature of control exercised by the Registrar over the T. D. C. C. , In this connection Shri Mallik has drawn our attention to Sections 6 to 15 of the Act finding place in Chapter II of the act dealing with registration of co-perative societies and Section 28-A. This apart, we have to bear in mind the import of the power conferred on the Registrar by Sections 32, 33-A, 62, 65 and 72 of the Act, of which mention has been made in the referring order. (X) In so far as Sections 6 to 15 are concerned , those being relat-able to the power of the Registrar concerning registration of co-operative societies do not enable the Rgeistrar to exercise any control over the working of the societies. (X) In so far as Sections 6 to 15 are concerned , those being relat-able to the power of the Registrar concerning registration of co-operative societies do not enable the Rgeistrar to exercise any control over the working of the societies. It is known that under the Company law also, similar provisions find place conferring power on the Registrar of Companies laying down the procedure etc of registration, because of which it cannot be said that the Registrar of Companies exercises any control over a company. So far as the power under Section 28-A is concerned it is pertinent to point out that by notification dated 24-11-1987 (Annexure-B) the T. D. C. C. had been exempted from the provision of this section. So, the Registrar cannot exercise any power under this section relating to the T. D. C. C. This apart, that section deals with the power of the Registrar concerning holding of election which does not enable him to control the working of the society. (XI) Section 3? deals with supersession of the committee of society, section 33-A empowers the Registrar to classify the societies and to make rules regulating classification, remuneration, allowances and other conditions of service of the employees to be employed by diffe+rent classes of societies, Section 62 has authorised the registrar to audit or cause to be audited the accounts of every society ; Section 64 clothes the Registrar with the power of inspection of the books of a society ; in exercise of the power under Section 65, the Registrar can hold an inquiry on his own motion by himself or by an authorised person into the constitution and financial condition of a society, and Section 72 gives power to the Registrar to wind up a society. (XII) This Court in Narnyan Rath's case (1970 ILR (CUTT) 437) had referred to the powers of the Registrar given by the Act and had observed, Inter alia, at page 450 that "there is strict control exercised by the Registrar and all persons appointed by the state to assist him in the matter of constitution of managing committee, board of directors, amendment of bye-laws and framing and imposing of subsidiary rules on the society which the society is bound to obey. There are provisions which provide for interference in case of disobedience of his order legally issued under various sections of the Act. There are provisions which provide for interference in case of disobedience of his order legally issued under various sections of the Act. " This was one of the reasons for the Court in that case to hold the society in question as amenable 10 writ jurisdiction. The Supreme Court, however, as already noted, did not approve the view taken by this Court in the aforesaid case in Nayagarh Co-operative Central bank Ltd. v. Narayan Rath, AIR 1977 SC 112 . (XIII) This matter was also examined by the Full Bench in Bana-behari Tripathy's case (67 (1989) CLT 5) and the nature of the power exercised by the Registrar was regarded as 'supervisory' in character having no bearing or the matter under examination. In this connection, reference was made to the case of Vitendra Pal Singh v. District Assistant Registrar, (1980) 4 SCC 109 , in paragraph 11 of which the following obser-vatgons were made : "but the supervisory powers given to the Registrar. . . . . . have a single object in view, namely, the better working of the co-operative societies. It is well known that many of the co-operative societies, particularly in ruarl areas, need the guidance of well trained expert officers and it is the function of the Secretary (whose powers had also come up for consideration in that case) ard the other-members of the centralised service to afford proper guidance to the ignorant and often illiterate members of the co-operative society. The supervisory powers given to the Registrar are with a view to enable him and the officials of his department to keep a vigilant ana benevolent eye on the working of the society so that none may take advantage of the innocent rural folk and so that the co-operative movement may be a success and a real boon to the weaker sections of the people. " (XIV) The regulatory and supervisory powers given by the Act to the registrar cannot, therefore, be regarded as sufficient to conclude that this official exercises such control over the working of a society because of which that body must be regarded as an instrumantality of the State. " (XIV) The regulatory and supervisory powers given by the Act to the registrar cannot, therefore, be regarded as sufficient to conclude that this official exercises such control over the working of a society because of which that body must be regarded as an instrumantality of the State. The concerned powers of the registrar do not permit him to control the day-to-day working of the co-operative societies but are meant to keep the societies on correct path and to see that there is no misutilisation of the co-operative society fund in which event stringent measures can be taken by the Registrar. These provisions are necessary to keep a check on the healthy functioning of a co-operative society and do not spell out any control as such on the working of a society. (C) Monopoly status State conferred or State protected. (i) To answer this question we have to know about the type of activities being performed by the T. D. C. C. We shall have occasion to discuss this aspect in detail while dealing with the next test which relates to the character of the functions discharged by the t. D. C. C. and whether the same are closely related to governmental functions, and so, it would be sufficient to state qua the test under consideratioa that the T. D. C C. is engaged in sale, distribution and allotment of minor forest produce (M. F. P. ). The stand of the Government in this regard is that no monopoly has been created in favour of the T. D. C. C. to undertake the aforesaid work, as stated in paragraph 4 of the affidavit filed on its behalf on 99-1991. The petitioner, however, has strongly contended that if the history of the formation of the T. D. C. C. is borne in mind, it would be clear that the functions presently being discharged by it were once being performed by the government exclusively which would show the monopoly character of the same. We would have occasion to state about the history of the formation of the T. D C. C. while dealing with immediately the next test. We would have occasion to state about the history of the formation of the T. D C. C. while dealing with immediately the next test. For the purpose at hand, it is deemed sufficient to say that a perusal of Annexure-C/3 dated 4-12-1990, which spells out the Government policy on lease of minor forest produce items in the State, shows that the T. D. C. C. has been given "the exclusive right to operate lease of 4 M. F P. items, namely. Tamarind, Hill Broom, Honey and Mahua Flower in all the 27 divisions of the State'. This annexure further says that m/s. Utkal Forest Products Limited, which is a joint sector company under I. P. I. C. O. L. (Industrial Promotion and Investment corporation Limited) will operate lease of 29 identified m. F. P. items in all the forest divisions of the State. This apart, the T. D. G. C. has been given the right to operate lease of all the M. F, P. items excluding the 29 items identified for M/s. Utkal Forest Products in 19 forest divisions named in paragraph (iii) of Annexure-C/3. In the remaining five divisions, the right of 'operating lease was given to the O. F. D. C. (Orissa forest Development Corporation) except the 29 items identified for M/s, Utkal Forest Products Limited and four items reserved for the T. D. C. C. As regards the rest three divisions, this right was conferred on A. M. C. S. (Agency Marketing Co-operative society), Tikaballi. (II) While preparing this judgment, a thought occurred to us that annexure-C/3 having dealt with granting of lease of minor forest produce items by the Government, the same must be confined to those forest produce items grown on Government land : and so, we wanted to know what is the position of the T. D. C. C. as regards the items in question grown on private land. We noted that Orissa Forest Produce (Control of Trade) Act, 1981 had been enacted for controlling and regulating of trade in certain forest produce by creation of a State monopoly in such trade. We noted that Orissa Forest Produce (Control of Trade) Act, 1981 had been enacted for controlling and regulating of trade in certain forest produce by creation of a State monopoly in such trade. The learned counsel for the parties were therefore asked to apprise about the position of the T. D C. C. qua the aforesaid act; and whether the T. D. C C. had been appointed as an agent under Section 4 (1) of the aforesaid Act for any or all of the minor forest produce items foy which exclusive right to operate the lease had been granted to the T. D. C. C. of which annexure-C/3 speaks of. The learned counsel for the parties thereafter produced certain documents and filed some affidavits and made some oral submissions also. (III) The scope of the aforesaid Act was spelt out in Utkal Contractors and Joynery Pvt, Ltd v. State of Orissa, AIR 1987 SC 1454 by stating that the same was enacted to vest in the Government exclusive right to purchase forest produce grown on private land. Of course, that Act applies to such forest produce which are specified by notification in this behalf, as stated in Section 1 (3)of the Act, The definition 'forest produce' in this Act includes mohua Flowers, Tamarind and Hill Brooms. This apart, other produce may also form part of 'forest produce', as may be notified by the State Government from time to time. (IV) Learned Government Advocate produced before us some notifications of the Forest and Environment Department dated 10-4-1991 by which the aforesaid Act was made applicable in relation to Mohua Flowers and the T. D. C. C. was appointed an agent for 11 units and as per the rest 16 units (the State having been divided into 27 units), the Orissa Forest Development corporation Limited was appointed as an agent. This would show that the T. D. C. C. enjoys the monopoly right in trading in Mohua flowers grown on private land also in relation to 11 units named in the aforesaid notification. This would show that the T. D. C. C. enjoys the monopoly right in trading in Mohua flowers grown on private land also in relation to 11 units named in the aforesaid notification. As other minor forest produce items for which the T, D. C. C. was given exclusive right of lease by Annexure-C/3 have not been notified to make the aforesaid act applicable to them, it is submitted by Shri Ray that the t. D. C. C. does not enjoy the monopoly right in so far as collection and marketing of the three other items of which mention has been made in paragraph (i) of Annexure-C/3. (V) Shri Mallik, however, contends that in so far as minor forest produce grown in Sub-Plan areas of the State is concerned, the t. D. C. C. as the Apex Body with the L. A, M. P. S. as its primaries is alone, entitled to procure and market the same. This contention has been advanced on the basis of what finds place in Annexure-19 dated 11-6-19/9. A perusal of that annexure shows that ia so far as the Sub-Plan areas of the State are concerned, a decision was taken by the Government that the t. D. C. C. will function as, the Apex Body with the L. A. M. P. S. as its primaries in so l"ar as procurement of minor forest produce and surplus agricultural produce is concerned. That annexure also states that marketing of minor forest produce and surplus agricultural produce procured by the L. A. M. P. S. shall be exclusively done by the T. D. C. C. The submission of Shri ray in this connection is that it is L. A. M. P. S. which purchase agricultural produce from the tribals and sell the same to t. D. C. C am! others as well, because of which it cannot be stated that the T. D. C. C. is the exclusive purchaser of these commodities from the tribals, as is the contention of Shri Mallik. This is what has been stated by the Special Officer of T. D. C. C. in his affidavit filed on 24-2-1992. others as well, because of which it cannot be stated that the T. D. C. C. is the exclusive purchaser of these commodities from the tribals, as is the contention of Shri Mallik. This is what has been stated by the Special Officer of T. D. C. C. in his affidavit filed on 24-2-1992. At this stage we may refer to the definition of "minor Forest Produce" given in Rule 2 (h) of the Orissa Timber and Other Forest Produce Transit Rules, 1980 which has i /fin J this expression to mean "forest produce other than timber of fire-wood, charcoal and bamboos". Though this definition given in the aforesaid Rules made in exercise of the powers conferrrd by Sections 45 and 46 of the Orissa Forest Act, 1972 may not apply proprio vlgore to the provisions with which we are concerned in the case at hand : nonetheless, we have mentioned about this to show as to how the State Government has understood this expression in a cognate rule. This definition would show that very large variety of forest produce falls in the category of "miner or forest produce". (VI) To satisfy OUr mind in the above regard, Shri Ray has referred us to pages 4, 46 and 47 of the Manual for L. A. M. P S. (1981 ). A perusal of page 4 shows that L A. M. P. S. undertakes various business activites including collection of minor forest produce as an agent of the T. D. C C. So, the T. D. C. C. is the principal agency of collection of the minor forest produce, which work is, of course unertaken by the L. A. M. P. S. At page 48 of this manual, it has been stated that to eliminate private traders it was decided in principle "that the T, D. C. C. will be the main lessee and L. A M PS shall act as an agent for procurement". In this page it is funber stated that as per the latest decision "the t. D. C. C will take the lease of the minor forest produce from the forest department whereas the L. A. M. P. S. will collect forest produce on bebalff of T. D. C. C. and supply to the T D. C. C. as per terms and conditions mutually agreed". A reference to page 46 shows that the L. A M. P. S. are required to purchase all types of marketable surplus of agricultural produce available within its area of operation This statement has been made after pointing out that the tribals bring their produce for sale in the markets and though there is a scheme of minimum support price in existence for most of the agricultural commodities, the system does not effectively operate in tribal areas, because of which a duty has been cast on the L A. M. P. S. to purchase all surplus of agricultural produce brought into markets by tribals at reasonable price which in no case can be below the support price as fixed by the State Government. This almost conclusively establishes that L. A. M. P. S. is virtually the agency which is not only required in collect but, in fact, collects all the agricultural produce brought into the markets by the tribals. The L. A. M. P. S. being the agent of T. D. C. C. we would accept the submission of Shri Mallik that it is the T. D. C. C. which procures the minor forest produce and surplus agricultural produce in so far as Sub-Plan areas of the State are concerned, and it is the t. D. C. C. which in turn markets the same. (VII) As to Anuexine-C/3, Shri Ray states that the Government had issued some notifications subsequently by which the right con-ferred on the T. D C. C. by Annexure-C/3 was curtailed by granting leases in re poet of the items covered by paragraph (i)of Annexure-C/3 to some o'ther bodies. In this connection, we are referred to Annexe res 4, 5, 6 and 7 of the affidavit filed on 19-2-1992 A perusal of these annexures shows that with respect to some of the items in some of the forest divisions of the State. Some L. A. M. P. S. were granted right of lease and in one case, the lease for one range, namely, Rayagada range of Rayagada forest division was granted in favour of Dokichinna Gurubalu and sons Company As L. A M P. S. are the primaries of the T. D C. C. granting of lease in favour of the L A. M. P. S. does not curtail the right conferred on the T. D. C. C. by Annexure-C/3. But then, Annexure-C/3 having not spelt out the period of granting of lease and the aforesaid aonexures in favour of certain l. A. M P. S. being resiricted to 1 to 3 years, it cannot be said that the T. D C C. had been conferred monopoly right to trade in the four minor forest produce items named in paragraph (i) of annexure-C/3 for all times to come. However, Annexure-19 having incorporated a permanent Government policy and having noted the provisions of the Manual for L. A. M P. S , we would hold that in so far as the surplus agricultural produce and minor forest produce grown by the tribals in the Sub-Plan areas of the state are concerned, the T. D. C. C. has to be regarded as the sole procuring and marketing agent. (VIII) All told, we would state that the T. D. C. C. does occupy a monopoly status with respect to minor forest produce and surplus agricultural produce items grown by tribals in the Sub plan areas of the State ; and this monopoly status is enjoyed by virtue of Government Policy. This test is, therefore, satisfied to a large measure. (D) Nature of functioning Whether closely related to governmental functions, (i) Let us now know in some detail what functions the T. D. C, C. is discharging, or to achieve what object the t. D. C, C. was formed. Shri Mallik refers in this connection to bye-law No. 3 of the T. D C. C. which deals with its objects. A perusal of the same shows that the objects covering from (a)to (z) relate to doing of some wprks connected with the welfare of the tribals. The history of formation of the T. D. C. C. about which light has been thrown in the affidavit filed on behalf of the state Government on 9 9-1991 shows that the germinating idea was the problems faced by the tribal people in marketing their products. To eliminat exploitation by middle men and money lenders, a beginning 'vas made in 1936 by forming Tikabali agency Marketing Co-operative Society. Thereafter, in the late 50s and the early 60s, a number of forest marketing cooperative societies came to be registered. These societies could not, however, become viable owing to inadequacy of working capital, inadequate organisarion and imperfect management. To eliminat exploitation by middle men and money lenders, a beginning 'vas made in 1936 by forming Tikabali agency Marketing Co-operative Society. Thereafter, in the late 50s and the early 60s, a number of forest marketing cooperative societies came to be registered. These societies could not, however, become viable owing to inadequacy of working capital, inadequate organisarion and imperfect management. It was experienced that the performance of these societies, particularly in respect of collection of minor forest produce, left much to be desired, which ied the Government to set up a Minor forest Produce Inquiry Committee in 1965. Following the recommendation of this Committee, Orissa State Forest Produce markelirg Co-operative Society was registered in 1967. The erstwhile forest marketing co-operative societies became its members. Unfortunately, this society also faced difficulties of working capital and organisation. It was also noticed that because of low turnover, it had to run at a loss. The Government, therefore, decided to expand the activities of the society, and after a thorough change in its bye-laws, the Orissa State tribal Development Co-operative Societies was formed and registered in April, 1972. Meanwhile, the Government initiated purchase and sale of essential commodities by setting up a net work of fair-price shops and procurement centres Though these bodies wen: rendering useful service to the tribals, they also faced difficulty of working capital and could not run on business lines. It: was, therefore, felt that the coverage of these bodies has to be increased both in terms of area and number of beneficiaries ; and so a decision was taken in December, 1972 to transfer he P. S. and F. S. (Purchase, Sale and Fair Price Shops)scheme o the aforesaid co-operative society. The name of this society was changed in 1975 to Tribal Development Co-operative corporation of Orissa Ltd,, i. e. , T. D. C. C. (II) There is no dispute before us that the T. D. C. C. carries on business in various forest commodities, small agricultural products minor forest produce and runs fair-price shops in sub-plan tribal areas, as stated in paragraph 9 of the additional affidavit filed on behalf of the T. D. C C. on 28-8-1991. (III) Shri Ma Ilik contends that these functions of the T. D. C. C. must be regarded as akin to governmental functions in view of Article 46 of the Constitution (finding place in the chapter relating to directive Principles of State Policy) and Section 40 of the Act. In so far as Section 40 of the Act is concerned, it is sufficient to say that that section states that it shall be the duty. of the State government to encourage and prompt the co-operative movement. From this, it cannot at all be said that the functions being performed by the T. D. C. C. would become State functions. (IV) Article 16 of the Constitution enjoins on the State to take steps for promotion of economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and scheduled Tribes, and to protect them from social injustice and all forms of exploitation. Shri Mallik urges that as the T D. C C' working is intimately connected with the welfare of the tribals and as the T. D. C. C, owes its origin to sort out the problems faced by the tribal people in marketing their products and to protect them from exploitation by middle-men and moneylenders the activities of the T. D. C. C. come within the ambit of Article 46. If that be so, learned counsel urges, the T. D. C. C. must be held to be discharging governmental functions because article 46 in a mandate to the State. In this connection, our attention is invited to Regional Provident Fund Commissioner v. Workmen, AIR 1984 SC 1897 , in which the question for consideration was as to which is the 'appropriate Government' to refer a dispute concerning the office of the Regional Provident Fund organisation established under the Employees Provident Fund and Miscellaneous Provisions Act, 1952. The Court in paragraph 8 of its judgment stated that the'activity of the Central or the State Board constituted under the aforesaid Act is traceable to Article 43 of the Constitution, which was regarded as a part of the programme of 'welfare State', which our country is. It was then observed that the institutions engaged in matters of such high public interest or performing such high public functions "by virtue of their very nature performed governmental functions' and they are truely the agents of the Government. It was then observed that the institutions engaged in matters of such high public interest or performing such high public functions "by virtue of their very nature performed governmental functions' and they are truely the agents of the Government. In this connection we may also refer to the following observation made in paragraph 20 of Tekraj Vasandi (supra): "we have several cases of societies registered under Societies registration Act which have been treated as 'state, but in each of those cases it would appear on analysis that either governmental business had been undertaken by the society or what was expected to be the public obligation of the 'state' had been undertaken to be performed as a part of the Society's function. . . . . . " this would show that if the society undertakes to perform a function which can be said to be governmental business, the Society may be treated as 'state. Performance of activities directed at welfare of the tribals can well be regarded as a business of the government. (V) In view of what has been stated above, we are of the opinion that the aforesaid contention of Shri Mallik cannot be said to be without force and so we hold that the function discharged by the t. D. C. C. can well be taken to be akin to governmental function. While taking this view, we are conscious of the fact that in a welfare State like ours, Government has to engage itself in varied functions, and it would enlarge the concept of 'state' greately which may not serve the purpose and may be far from reality, about which caution has been sounded in Tekraj Vasandi. While taking this view, we are conscious of the fact that in a welfare State like ours, Government has to engage itself in varied functions, and it would enlarge the concept of 'state' greately which may not serve the purpose and may be far from reality, about which caution has been sounded in Tekraj Vasandi. But then, if the functions of a body be so intimately connected with the duty enjoined on a State by the Directive Principles of the State Policy, a discerning mind, keeping in view the realities and human experience, tan well come to the conclusion that the function is akin to governmental function : more so if the entire functioning of the body be oriented towards implementing an object which, but for the activities of the body, the State would have felt called upon fo perform in view of the obligation fastened on it by the Directive Principles It has to be admitted that welfare of tribals is on the high agenda of governmental duties, as this segment of population has long been a victim of exploitation, neglect and penury. Ours being a welfare State, no government can remain inactive in this sphere. So, a body voluntarily engaged in activities intimately connected with the welfare of tribals can well be said to be discharging functions akin to governmental functions, as in the absence of the activities of the boay, the government itself would have most probably come forward to carry on these activities. (E) Was the T. D. C. C. earlier a Government Department ? The history of the formation of the T, D. C. C , which we have noted above, would show that it is not a case where a department of government has been transferred to the T. D, C. C. This test is, therefore, not satisfied. In this connection, it may be pointed out that it is open to a Court while examining such a matter to tear the veil, as stated in Central Inland Water Transport Corporation v. Brajonath, air 1986 SC 1571 . Even while doing so, it cannot be said that in the name of the T. D. C. C. , the Government is discharging its vital functions. Even while doing so, it cannot be said that in the name of the T. D. C. C. , the Government is discharging its vital functions. (F) Extent of financial assistance by the State: From the additional affidavit filed on behalf of the T. D. C. C. on 28-8-1991, it appears that the T, D. C. C. 's loans and borrowings incurred to meet its expenditure are to the tune of Rs. 12 33 crores, out of which the Government had advanced a loan of Rs. 2. 22 crores, the balance being loans from the World Bank, N C. D. C. , orissa Khadi and Village Industries Board, cash credit loan, loan against F. D R , D. I, R. loan from Andhra Bank and revolving fund. This shows that the financial assistance by the Government to the T p. C. C. to enable it to meet its expediture is not significant and it cannot be said that by this assistance the t. D C. C. is meeting almost its entire expenditure. This test is, therefore, also not satisfied. Conclusion. ( 25 ) (A) From what has been stated' above, we find that of the six factors to be borne in mind in this connection, those relating to the share capital being held by the Government, deep and pervasive State Control, monopoly status of the business and activities being akin to governmental functions are satisfied in the present case. Of course, in so far as share capital is concerned, the whole of it is not held by the Government, but it holds a very substantial part of it, as its share holding is to the extent of 88%. (B) The point for consideration is whether on the basis of satisfaction , of these tests, it can be rightly and justly said that the T. D. C. C. is a 'state. It has to be borne in mind in this connection that in the absence of fair application of 'the aforesaid tests, there is possibility of turning every nongovernmental society into an agency or the purpose and may be far from reality, as pointed out in paragraph 20 of Tekraj Vasandi (supra ). It has to be borne in mind in this connection that in the absence of fair application of 'the aforesaid tests, there is possibility of turning every nongovernmental society into an agency or the purpose and may be far from reality, as pointed out in paragraph 20 of Tekraj Vasandi (supra ). It has also been recently pointed out in Chander Mohan Khanna's case that Article 12 should not be stretched so as to bring any other autonomous body which has some nexus with the Government within the sweep of the expression 'state. (C) We would say that while deciding the above question, it is also necessary to be borne in mind that on an entity comes within the fold of |state', it becomes subject to the discipline of fundamental rights, which include Article 14, because of which it would become possible for higher courts to examine the reasonableness of the decisions taken by such an entity. With the aid of Article 14, it would be possible to check arbitrary decisions of these bodies. Further, life of law is not logic, it is experience. And experience born out of the prevailing situation in the country is that arbitrariness is gaining ground which requires the higher Courts fastened with the constitutional responsibility of protecting fundamental rights of the citizens to remain ever vigilant. It would no doubt increase the work of these Courts, but it would not open the flood gate, which argument was rejected by Krishna Iyer, J. (for self and Bhagwati, J.) in Fertilizer Corpora tton Kamgar Union v. Union of India, AIR 1981 SC 344 by referring to the following observation of Australian Law Reforms Commission : -"the idle and whimsical plaintiff, a dilettante who litigates for a lark, is a spectre which hunts a legal literature, not in the Court room. " (D) Keeping in view all the above and the following statement of law in chander Mohan Khanna's case : -"the combination of State aid coupled with an unusal degree of control over the management and policies of the body, and rendering of an important public service being the obligatory functions of the State may largely point out that the body is a state'. " we hold that the T. D. C. C. is a 'state', because the factors of which mention has been made in the aforenoted quotation are present in the case of the T. D. C. C. in a very great measure The T. D. C. C, does reflect the voice of the State and the hand of the State are very much apparent, (E) The reference is, therefore, answered by stating that the T. D. C. C. is a 'state'. ( 26 ) LET the records be now placed before the appropriate Bench for disposal of the case in accordance with the answer given by us. L. Rath, J. I agree, suit. A. K. Padhi, J. I agree. Order accordingly.