Judgment :- “CR” .1. Election to the committee of the third respondent District Co-operative Bank was notified. Petitioner in WP(C)No. 26427 of 2008 submitted nomination. Respondents 4 to 8 therein are also candidates. It is contended that they are disqualified since the respective society, of which each among them is the representative, is in arrear to the District Co-Operative Bank and therefore, disqualified in terms of Rule 46(e) of the Kerala Co-operative Societies Rules, 1969, hereinafter, the “Rules”, for short. The Government issued Government order dated 22-8-2008 exempting all primary agricultural credit societies form the provisions of Rule 46(e) for a period of one year from the date of that notification, in exercise of power under Rule 181 of the Rules. That is under challenge on the .ground that the said notification is the result of absue of power, is politically motivated and is a selective action intended only to remove the disqualification of respondents 4 to 8 in WP (c) No. 26427 of 2008. According to the petitioners, the problems explained in the Explanatory Note attached to Government order dated 22-8-2008, are faced by large number of societies and the exemption issued only in respect of primary agricultural credit societies, is bad and is the result of absue of power. 2. Following interim order dated 4-9-2008 in WP(c) No. 26427 of 2008, election proceedings continued and polling was held. Results are yet to be declared. 3. WP(C) No. 28355 of 2008 is filed by a member of the third respondent District Co-operative Bank, being a delegate. He also challenges the Government order dated 22-8-2008 and supports the other writ petition. 4. The private respondents in WP(c) No. 26427 of 2008 have placed counter affidavits, which included the uncontested statement that, at the time of scrutiny of nomination papers, 15 persons were present and no one raised any objection regarding the nomination of respondents 4 to 8. 5. In the counter affidavits of the private respondents in WP(c) No. 26247 of 2008, they have specifically pleaded that the third respondent has not issued any notice to the societies represented by them seeking repayment of any arrear and therefore, those societies cannot be said to be in default. 5. In the counter affidavits of the private respondents in WP(c) No. 26247 of 2008, they have specifically pleaded that the third respondent has not issued any notice to the societies represented by them seeking repayment of any arrear and therefore, those societies cannot be said to be in default. Apart from those undisputed averments, the learned counsel for the third respondent has also stated, on query by this court, that the third respondent has not issued any notice demanding repayment of the arrears. 6. Rule 35A(4) of the Rules provides that the list of members qualified to vote at the election shall be in terms of Act, Rules and Bye-laws as stood on a date sixty days prior to the date fixed for the poll. Respondent 4 to 8 in WP(C) No. 26427 of 2008 are not shown to have incurred any ineligibility to vote in the election. .7. Rule 46(e) provides that a delegate of one society sitting on the committee of another society shall cases to be member of such committee, if the society which sends him as a delegate is in default to the society, in the committee of which he sites as a delegate. Rule 46(d) provides such cessation of membership in the committee, if that delegate incurs any disqualification mentioned in Rule 44. Rule 45 (1) provides the personal disqualifications preventing a member of a society from being appointed to represent that society in the committee of any other society and to vote. Sub-rule 2 of Rule 45 prescribes situations where that member could incur personal disqualification resulting in cessation of the appointment as the delegate. Rule 44 provides disqualification of membership of committee. Rule 44(1) (c) (i) provides that no member of the society shall be eligible for being elected or appointed as a member of the committee of the society under section 28 if he is in default to the society or to any other society in respect of any loan or loans taken by him or loan in which he had stood surety, for such period, as is prescribed in the bye-laws of the society concerned or in any case, for a period exceeding three months or is a defaulter to the society or to any other society. Section 28 of the kerala Co-operative Societies Act, hereinafter, the “Act”. For short applies to all societies. Section 28 of the kerala Co-operative Societies Act, hereinafter, the “Act”. For short applies to all societies. Therefore, the disqualification of membership under Rule 44(1) is one that could be incurred even by a society which becomes a member in another society. Reverting to Rule 35A(d) (iii), no member, who is disqualified to be a member under the provisions of the Rules shall be nominated as a candidate for election to fill a seat in the committee. Therefore, even if it is possible to contrast Rules 45 and 46 as enunciated above, a society cannot save itself from incurring the liability referred to in Section 35A (d) (iii) on the plea that, Rule 46 operates only after a delegate gets elected to the committee of a society to which it is a delegate and only after he sits in that committee. Prescription in Rule 46 is essentially a disqualification, which will stare at him the .moment he tries to sit in the committee. It can never be taken as a recognizable legislative provision, either primary or subsidiary that it would authorize a person, who would be incompetent to sit in the committee to contest in the election. This is so because, the very entitlement to be a candidate for the election is inexcusably dependent on the entitlement to be, and to sit, act and perform; including by voting, as a member of the committee. Therefore, it has necessarily to be held that, if a society, which sends a delegate to another society, is disqualification under Rule 46(e) at the time of submission of nomination for the election to the committee of that society, its nominee cannot be a candidate in that election. He will be disqualified. The situs and time of determining such disqualification is the submission of nomination on the date fixed for that purpose in terms of Rule 35A(6) as held by this Court in Moosa V. Joint Registrar (1994 (2) KLT 943). 8. Having thus noticed that Rule 46(e) read with Rule 44 and Section 28 is a relevant consideration to determine disqualification for the purpose of Rule 35A(6) (d) (iii), such disqualification for a member society can be only if it is defaulter or is in default in terms of Clauses (d) and (e) of Rule 2 of the Rules. 8. Having thus noticed that Rule 46(e) read with Rule 44 and Section 28 is a relevant consideration to determine disqualification for the purpose of Rule 35A(6) (d) (iii), such disqualification for a member society can be only if it is defaulter or is in default in terms of Clauses (d) and (e) of Rule 2 of the Rules. Petitioners have no case that any of the societies represented by respondents 4 to 8 in WP(C) No. 23427 of 2008 is a defaulter. The concept of failure to repay; to treat a society as one in default calls for consideration whether there was any demand. This, on the basis of the pleadings, stands concluded; as not there. Learned counsel for the third respondent bank has also stated that no demand was made by issuing any notice. 9. There is no dispute that the Government Order dated 22-8-2008 was issued before the date fixed for submission of nominations. Therefore, if that Government order stands, the alleged ground of disqualification, even if it were there, goes. 10. Therefore, if, as a matter of fact, the member societies in question were in default to the third respondent District Co-operative Bank, does Government Order dated 22-8-2008 stand? .11. Rule 181 of the Rule relates to a power of wide amplitude and great restraint. It includes the power to issue any general or special order. In doing so, the Government are empowered to make that exemption to be subject to conditions. Such exemption can be granted to any registered society or class of such societies. The power is to exempt from any of the provisions of the Rules or to direct that such provisions may apply with such modifications as may be specified in the order. The whole exercise under Rule 181 is governed by the confidence reposed on the Government to act ‘”as they deem fit”. The exercise of such power, in so far as the impugned Government Order dated 22-8-2008 is concerned , is in favour of primary agricultural credit societies, which is a class of societies identified so, in Rule 15 of the Rules. It is not a conferment in favour of one or a few. The exercise of such power, in so far as the impugned Government Order dated 22-8-2008 is concerned , is in favour of primary agricultural credit societies, which is a class of societies identified so, in Rule 15 of the Rules. It is not a conferment in favour of one or a few. The omnimus contention that it is a result of absue of power since respondents 4 to 8 in WP(c) No. 26427 of 2008 are fielded by CPI-M is not a legally accepted one, for reasons more than one. A colourable exercise of power or an act, which amounts to fraud on powers; be it an act with no power or an act in defeasance or defiance of power, has to be established with reference to facts and law. In law, there cannot be any plea of absence of power, having regard to Rule 181. Beyond that, no shade of bias, mala fides or other vitiating elements, which have actuated the impugned action, is either pleaded or established. The mere fact that respondents 4 to 8 in WP (C) No. 26427 of 2008 are candidates fielded by a particular political party, whose members may be involved in the Government as elected representatives of the people, gives no foundation to assume any mala fide or colourable exercise of power. Not only that, even by the petitioner’s pleading, “a large group of societies are facing the problems explained in the Explanatory Note attached to Government Order dated 22-8-2008". The criticism is only to the conferment of that exemption, to be confined to the primary agricultural credit societies. The plea, therefore, is that there were societies, even other than primary agricultural credit societies, which would be entitled to benefits similar to Government Order dated 22-8-2008, if the view of the Government in the Explanatory Note to that document stands. That is no wisdom to strike down the Government Order dated 22-8-2008. That does not spell out any hostile .discrimination. Government has also placed on record the Government Order dated 15-10-2008 by which exemption is extended to Primary Co-operative Agricultural and Rural Development Banks, which is a class of societies by Rule 15. 10.12. The power under Rule 181, being a power to exempt from statutory Rules, though is exercised with reference to that Rule 181, which is a statutory provision, is essentially incidental to the subordinate legislative power to make the Rule. 10.12. The power under Rule 181, being a power to exempt from statutory Rules, though is exercised with reference to that Rule 181, which is a statutory provision, is essentially incidental to the subordinate legislative power to make the Rule. To that extent, an exercise under Rule 181 cannot be called into question as if it is merely an administrative order. The Explanatory Note does not from part of the notification. Yet, I ,may look into that, only to see that the Government had reasons before it, for the impugned decision and by no stretch of imagination, could it be conceived that the decision contained in Ext. P2 is not issued in public interest. The factors disclosed in the Explanatory Note establish that the Government have adverted to and considered relevant materials on the strength of which it concluded that exercise of power under Rule 181 is called for in public interest, to exempt the primary agricultural credit societies from the provisions of sub-rule (e) of Rule 46 of the Rules for a period of one year. So much so, the impugned notification is only to be upheld. I do so. In the result, these writ petitions fail. They are accordingly dismissed. No costs. Resultantly, the result of the election shall be further declared enabling the elected committee to enter office.