The central legal point established in the judgment is the interpretation and application of the provisions of the Cooperative Societies Act, 2007, regarding the requirement for the Board of Directors to arrange for holding the election of directors before the expiry of their term.

JUDGMENT

Achintya Malla Bujor Barua, J. - Heard Mr. H.R.A. Choudhury, learned senior counsel for the petitioner. Also heard Mr. A. U. Ahmed, learned counsel for the Cooperation Department and Ms. M. Bhattacharjee, learned Additional Senior Govt. Advocate appearing for the Deputy Commissioner, Barpeta.

2. The petitioners are the Board of Directors of Fulara Chatala SS Ltd and Moinbari SS Ltd represented by their respective presidents.

3. The grievance raised by the petitioners in this petition is that because of the existing pandemic condition, the Board of Directors are unable to hold annual general meeting for election of the new Board of Directors, although they intend to do so.

4. We have taken note of that because of the prevailing condition, it may not be appropriate for the respondents in the Cooperation Department requiring the Board of Directors to hold the election and to that extent no permission has also been granted by the Cooperation Department requiring the petitioners to hold the AGM for the election and if even any such permission is there, a further question would remain as to whether in the present circumstance, such permission or direction can be allowed.

5. Be that as it may, in the present circumstance, this petition has been preferred that till the next election of the Board of Directors could be held by the two respective cooperative societies, the existing Board of Directors be allowed to discharge the duties as regards the societies inasmuch as the present term of the Board of Directors came to an end on 16.05.2020. However, we also take note of that this petition is for a writ in the nature of mandamus directing the respondents to allow them to continue as the Board of Directors.

6. For the purpose, representations have been submitted by the petitioners before the authorities in the Cooperation Department. But no decision has been taken on the same. Accordingly, we are to understand that the demand made by the petitioners has not yet been refused by the respondents and therefore, the issuing a writ in the nature of mandamus in the circumstance would be premature.

7. But further at the same time, we take note of that Section 41(4) of the Cooperative Societies Act, 2007 provides that where a board fails to arrange for holding election of the directors or delegates as the case may be before the expiry of the term of their office, the director shall cease to be directors on the expiry of the term of 5 years as mandated in Section 42(1). In the instant case, an issue has been raised by the petitioner that because of the pandemic condition and also in view of the representation submitted by them, it cannot be held that the Board had failed to arrange for holding election of the directors and therefore, the provision of Section 41(4) that the directors shall cease to be the director on expiry of the period of 5 years would not be applicable. Further Section 41(6) provides that when the Board of Directors fail to arrange for holding election before the expiry of the term of Board of Directors, the authorities may also appoint an officer to perform the functions of the board in the interim.

8. Again in order to invoke the powers under Section 46(1), the pre requisite would be that the board had failed to arrange for holding election. If the circumstance is as such that it cannot be said that the board had failed to arrange for holding of election, the condition precedent in Section 41(4) and 41(6) prima facie would appear to be not in existence.

9. In the circumstance, we require the Registrar of Cooperative Societies to take up the representations of the petitioner dated 01.04.2020 and pass a reasoned order on the same by arriving at his satisfaction whether in the circumstance indicated above, which infact is prevailing, the Board of Directors had failed to arrange for holding of the election for the director. If the conclusion arrived is that in the circumstance, they could have held the election, the Regist