Hon’ble Vivek Kumar Birla, J.—Heard Sri Atul Dayal alongwith Sri Arvind Srivastava, learned counsel for the petitioners and Sri Ashish Kumar Singh, learned counsel appearing for the landlord-respondent.

2. Present petition has been filed for setting aside the judgment and order dated 13.11.2017 passed by Additional District Judge, Court No. 3, Saharanpur in Rent Control Appeal No. 18 of 2011 (Abdul Malik v. Mushtaq Ahmad) and the order dated 30.5.2011 passed by Prescribed Authority/Judge Small Causes Court, Saharanpur in P.A. Case No. 17 of 1999 (Mushtaq Ahmad v. Abdul Malik).

3. The release application was filed by the landlords on the ground that they are carrying on tailoring profession from their place of residence only and are having very small earning and therefore, the shops in dispute are required for the purpose of carrying on tailoring business as well as for establishing readymade garments business and the tenant is a person of sufficient means and therefore, he can shift to any other place, whereas the landlords do not have any other place for carrying on their business. The release application was filed by uncle and his nephews for their purposes. The same was contested on the ground that the need is not bona fide and sons of Mushtaq are engaged in different business and occupation and one son of Mushtaq is engaged in tailoring business, which has been established separately and others are engaged in car decoration business and therefore, their need is not bona fide. It was also contended that the defendants-petitioners herein are tenants in the property in dispute since 1965 and they have earned goodwill.

4. It was found by the trial Court that sons of applicant No. 1-Mushtaq are also doing tailoring on job work basis and are working with some other persons and the applicant Nos. 2 to 4 are engaged in car denting and painting business on temporary basis and it was also found that they have no other place to shift, therefore, need was found to be bona fide. On comparative hardship, it was found that the defendants have not made any effort to search out any alternative remedy for shifting their job/profession and therefore, the issue of comparative hardship as per settled law is not in their favour. Evidence was given by the landlord that one shop belonging to the tenant was in possession. The same was denied by the tenant but it was not clarified that if it does not belong to him then who is the owner of the same. The appeal was filed against the same, which was also rejected.

5. Submission of Sri Atul Dayal, learned counsel for the petitioners is that the provisions of the Act 13 of 1972 (hereinafter referred to as the Act) are not applicable in the present case as the shop is being used for industrial purposes. Referring to Section 2(1)(d) he contends that the kharad machine established by the tenant in the shops in dispute would fall within the meaning of the ‘industrial purposes’ and therefore, the property in question would be exempted from the operation of the Act and hence, the impugned judgments are without jurisdiction and are liable to be set aside. He had referred to agreement dated 24.3.1998 to submit that heavy machinery business is being carried on by the tenant. He submitted that although this issue was never raised before the Courts below, however, question of jurisdiction goes to the root of the case and as such the same can always raised at any stage including the stage of execution. Submission, therefore, is that this question being purely legal in nature, can be raised before this Court. In support of his arguments reliance has been placed by him on the judgments of Hon’ble Apex Court in the cases of Zauri Cement Ltd. v. Regional Director Employees State Insurance Corporation, Hyderabad and others, 2015 (7) SCC 690 (paragraphs 10 to 17), Jagadguru Annadanishwara Maha Swamiji v. V.C. Allipur and another, 2009(4) SCC 625 (paragraphs 12 to 14), and Harshad Chiman Lal Modi v. DLF Universal