ORDER : 1. Heard learned advocate Mr. Bomi Sethna for the petitioner, learned Assistant overnment Pleader Mr. Ayaan Patel for the respondent- State and learned advocate Mr. Ashish Shah for respondent Nos. 2 and 3 on caveat. 2. By this petition under Article 227 of the Constitution of India the petitioner has prayed for the following reliefs: “A. This Hon’ble Court be pleased to allow the present petition; B. This Hon’ble Court be pleased to issue appropriate writ, direction and/or order in the nature of certiorari by quashing and setting aside the impugned orders dated 25.10.2021 and 29.11.2021 passed by the Board of Nominees and Gujarat State CO-operative Tribunal respectively and further be pleased to restrain the respondent Nos. 2 and 3 from utilizing their properties for commercial purpose and/or in the alternative, this Hon’ble Court be pleased to direct the Board of Nominees to decide the Lavad Case No. 207 of 2021 within the stipulated period of 3 month; C. Pending admission and/or final disposal of this petition this Hon’ble Court be pleased to stay the orders dated 25.10.2021 and 29.11.2021 passed by the Board of Nominees & Gujarat State Cooperative Tribunal respectively; D. Ad interim and/or interim relief in terms of para (C) herein above; E. Any such other and further orders as thought fit in the interest of justice.” 3. It is the case of the petitioner that respondent Nos. 2 and 3 purchased Bungalows No. 51 and 52 on 04.09.2020 and 20.08.2020 respectively by executing registered sale deeds from the original owners and thereafter, an application was made before the petitionersociety on 15.10.2020 to transfer the share certificate in favour of respondent Nos. 2 and 3. It is pertinent to note that respondent No.2 is a Private Limited Company and respondent No.3 is a Doctor and they purchased bungalow Nos. 51 and 52 with an intention to start the hospital as the said bungalows were on the main road. 4. The petitioner-society thereafter transferred bungalow Nos. 51 and 52 in the names of respondent Nos. 2 and 3 by entering their names in the share certificate after accepting the transfer fees and by charging higher maintenance of Rs. 1600/- per month as per the resolution passed by the petitioner-society in the year 2016. Respondent Nos. 2 and 3 have paid the maintenance upto 31.03.2022 at the rate of Rs. 1600/- per month. 5. 2 and 3 by entering their names in the share certificate after accepting the transfer fees and by charging higher maintenance of Rs. 1600/- per month as per the resolution passed by the petitioner-society in the year 2016. Respondent Nos. 2 and 3 have paid the maintenance upto 31.03.2022 at the rate of Rs. 1600/- per month. 5. It is the case of the petitioner that respondent Nos. 2 and 3 started modification and construction of the additional floor on the bungalows to start Multi Specialty Hospital and therefore the petitioner-society passed a resolution on 27.06.2021 in an Extraordinary General Meeting wherein it is resolved that no person shall be permitted to do the commercial activity in the petitioner society. 6. The resolution included numbers of more than 08 bungalows where commercial activities are going on i.e. bungalow Nos. 1, 47, 50,53,54 and 55 in addition to bungalow No. 51 and 52 of the respondent Nos. 2 and 3. 7.As respondent Nos. 2 and 3 continued to use the Bungalow Nos. 51 and 52 for its hospital purpose by continuing to operate OPD, the petitioner filed Lavad Suit No. 207 of 2021 and also filed an application Exhibit-6 for interim relief before the the Board of Nominees. The Board of Nominees has initially granted ex parte stay against respondent Nos. 2 and 3 and after hearing both the sides, dismissed application Exhibit 6 on the ground that respondent Nos. 2 and 3 were admitted as the shareholders of the petitioner-society after accepting the transfer fees and there is no prima facie evidence produced on record by the petitioner-society to point out that why respondent Nos. 2 and 3 be restrained from using the property in question for commercial purpose during the pendency of the Lavad Suit. 8. The Board of Nominees also considered that the petitioner-society has suppressed the fact of passing of the resolution dated 30.08.2016 wherein the petitioner-society resolved to charge Rs. 1600/- towards maintenance from the members who are using their properties for commercial purpose. The Board of Nominees also considered that there are many other bungalows which are used for commercial purpose and the petitioner-society has not initiated any action against such members and therefore, it was held that the there was no prima facie case in favour of the petitioner-society to grant the interim relief during the pendency of the Lavad Suit. 9. The Board of Nominees also considered that there are many other bungalows which are used for commercial purpose and the petitioner-society has not initiated any action against such members and therefore, it was held that the there was no prima facie case in favour of the petitioner-society to grant the interim relief during the pendency of the Lavad Suit. 9. The petitioner-society therefore challenged the order passed by the Board of Nominees by preferring Revision Application No. 77 of 2021 before the Gujarat State Co-operative Tirbunal [‘Tribunal’ for short] which is also dismissed by the Tribunal by the impugned order dated 29.11.2021. 10. Learned advocate Mr. Sethna appearing for the petitioner submitted that the petitioner society has passed a resolution in the Extraordinary General Meeting held on 27.06.2021 wherein it is resolved that the members occupying bungalow Nos. 1,47, 49, 50, 51, 52, 53, 54 and 55 which are on the main road and who are using their premises for commercial purposes, are required to be stopped immediately to use premises for commercial purpose as the petitioner-society is formed for the purpose of residential use only as per clause 30 of the by-laws of the petitioner-society. 11. It was therefore submitted that respondent Nos. 2 and 3 cannot continue to use their premises for commercial purpose during the pendency of the Lavad Suit and hence, both-the Board of the Nominees and the Tribunal have committed grave error by rejecting the application Exhibit-6 restraining respondent Nos. 2 and 3 from using the premises for commercial purpose of running the hospital. 12. Learned advocate Mr. Sethna in support of his submission relied upon the order dated 06/07 April,2017 of this Court [Coram: Hon’ble Mr. Justice S.G.Shah, As his Lordships was then] in case of Savitaben Amarshibhai Kanani (Patel) vs Shree Nehrunagar Co. Op Housing Society Ltd and ors. 12. Learned advocate Mr. Sethna in support of his submission relied upon the order dated 06/07 April,2017 of this Court [Coram: Hon’ble Mr. Justice S.G.Shah, As his Lordships was then] in case of Savitaben Amarshibhai Kanani (Patel) vs Shree Nehrunagar Co. Op Housing Society Ltd and ors. rendered in Special Civil Application No. 5980 of 2017 wherein this Court, in converse situation, where members of the society permitted to use the residential premises for commercial purpose by majority and in such circumstances, the Court came to the conclusion that the interim relief was required to be granted and after analyzing the entire case laws it was held as under: “8.Whether if we peruse the impugned judgment, details of which are disclosed herein above now it becomes clear that though tribunal has on two occasions specifically admitted that several issues are matter of evidence, the tribunal has audacity to confirm that plaintiff has filed a revision with ulterior motive. It cannot be said that only because society has acted through majority, they have right and that only because Respondent Nos. 2 and 3 have invested Rs.5 Crores, they can continue the illegal use of the properties which is not permissible in law. It is quite clear that laws and byelaws do not permit the commercial use of residential property. 9. It can never be stated that activities of hospital are charitable activity because all such activities are not only for earning livelihood but earning butter over the bread and, therefore, it cannot be stated that such activities are charitable activity and, therefore, it can be continued even if it results into illegality or irregularity in any manner, whatsoever. It cannot be ignored that if hospital is permitted to be functional in residential zone then there would be more traffic and there is also possibility of infection in surrounding areas if hospital fails to maintain proper standards of hygiene. 10. At this stage, I do not wish to reproduce the submissions and citations by the petitioner since I am admitting the matter and to avoid repeated exercise since the matter is yet to be argued in detail and would be decided on its own merits at the time of final hearing. However, when interim relief is opposed vehemently with detailed argument, it needs to be considered and answered at present. However, when interim relief is opposed vehemently with detailed argument, it needs to be considered and answered at present. Thereby, it can be said that grounds taken in pleading by the petitioner are prima facie sufficient to grant interim relief at present. … …… … … … 17. It cannot be ignored that majority of the members of the cooperative society alone cannot change the statutory provision and, therefore, only because society has resolved by majority to permit the Respondents to carry out commercial construction, when by laws of the society so also other statutes and decision of the Court, more particularlyin the case of Ambica Nagar Cooperative Housing Society (supra) specifically confirm that commercial activity cannot be carried out in residential zone, and more particularly, in plot or house of Cooperative Housing Society, the petitioner has got a prima facie case in his favour. It cannot be ignored that prima facie case, balance of convenience and irreparable injury, cannot tilt in favour of the wrongdoer merely because of support rendered by majority members of the cooperative society. 18. Similarly, when byelaws of the society as well as other laws and rules relating to construction, restrict the use of the plot under reference to be utilised for commercial activity, only because local authorities have granted permission, the Respondents No.2 and 3 do not have absolute right to utilise such property for commercial purpose when his neighbour has raised the issue regarding illegal permission and construction. Therefore, when it is settled legal position that prima facie case is to be looked into based upon the statutory provision, then, it is certain that prima facie case is certainly in favour of the petitioner so as to restrain the Respondents from using the property in question for being utlised for commercial purpose. Thereafter, consideration of balance of convenience and irreparable loss would follow the aspect of prima facie case inasmuch as only because someone is a Doctor and has spent some amount for the disputed construciton, it cannot be said that balance of convenience is in his favour and because of his investment against right of the petitioner to stay in a safe residential zone free from infection, contamination, pollution and other hazards, which may occur if hospital is permitted to be functional in residential zone. Therefore, balance of convenience would certainly tilt in favour of the person, who is having residence in residential zone rather than the person, who is trying to utilise the residential zone for carrying out commercial activities. It is wellknown that Doctors are not providing their services as charity, but they are charging handome amount towards their consultancy and other charges and, therefore, only because Respondents want to run hospital, it cannot be said that balance of convenience is in their favour.” 13. On the other hand, learned advocate Mr. Ashish Shah appearing for the respondent Nos. 2 and 3 on caveat submitted that the respondent Nos. 2 and 3 have purchased the bungalow Nos. 51 and 52 so as to use the same for the hospital which is apparent from the application for transfer made by the respondent Nos. 2 and 3 before the petitioner society which was granted and the shares were transferred in the name of the respondent No.2 who is holding 75% share as the owner and respondent No. 3 as 25% owner of the property in question. 14. It is also pointed out by learned advocate Mr. Ashish Shah that the Tribunal has confirmed the order dated 25.10.2021 passed by the Board of Nominees with a condition that respondent Nos. 2 an 3 shall be subject to undertaking given by respondent Nos. 2 and 3 in para 26 of page 9 of their reply at Exh 8 to operate only OPD. 15. It was therefore submitted that no interference is required while exercising extra ordinary jurisdiction under Article 227 of the Constitution of India when there are concurrent findings of fact and the impugned orders are passed at an interim stage permitting the respondent Nos. 2 and 3 to use the property in question for running their OPD during the pendency of the Lavad Suit. 16. Having heard learned advocate for the respective parties and having gone through the materials on record it appears that the petitioner-society has permitted to use various members of the society, whose property is situated on main road to use their premises for commercial purpose and for that purpose, in the year 2016 by resolution dated 30.08.2016 the petitioner-society prescribed three rates of maintenance viz. Rs. 800/- for residential use, Rs. 1200/- for tenanted premises and Rs. 1600/- for premises which are used for commercial purpose. Rs. 800/- for residential use, Rs. 1200/- for tenanted premises and Rs. 1600/- for premises which are used for commercial purpose. Thus, prima facie the petitioner-society has permitted its members to use the their premises for commercial purpose by specifying the maintenance charges to be levied upon such members. 17. This aspect is taken into consideration by Board of Nominees as well as the Tribunal and further it is also observed by both the authorities that the petitioner-society has failed to take any action against the other members and therefore during the pendency of the Lavad Suit, at interim stage, if the relief as prayed by the petitioner-society is granted, it would amount to allowing the Lavad Suit at interim stage. 18. In such circumstances and considering the reasoning given by the Board of Nominees as well as the Tribunal, no case is made out by the petitioner to grant any relief at the stage of pendency of the Lavad Suit as there is no prima facie case in favour of the petitioner in the facts of the case. The balance of convenience is on the contrary in favour of the respondent Nos. 2 and 3 as it would result into irreparable loss to the respondent Nos. 2 and 3 if they are restrained from using the premises being bungalow No. 51 and 52 for the purpose for which it is purchased by them in the year 2020 which is also transferred by the petitioner-society in the name of the respondent Nos. 2 and 3. 19. It appears that the petitioner-society has changed its stand only on account of change in the management of the petitioner-society which cannot be permitted keeping in mind the principle of co-operation which are the basis of the co-operative society. 20. In view of the facts of case and for the foregoing reasons the petition being devoid of any merits is dismissed with no order as to costs.