JUDGMENT J.K. Tandon, J. - The dispute in this case relates to the ground floor of a house no. 78|298 situate at Anwarganj, Kanpur. It is used as a shop and was originally in the tenancy of one Narain Lal. Narain Lal, however, sub-let this shop earlier to Bhagwan Das and later, according to the petitioner, to him as sub-tenants. Since the time of the sub-lease Mohd. Shafi, the petitioner, claims to have been in possession of the shop, while Dulare Lal, who is respondent No. 3, occupied a patra only in front for the purposes of selling some miscellaneous articles. In August 1956, Narain Lal is said to have surrendered his tenancy to the landlady, Smt. Shanti Devi. Therefore, on 22nd August 1956 Mohd. Shafi applied to the Rent Controller for the allotment of the same accommodation in his favour. Dulare Lal, respondent no. 3, also applied to the Rent Controller for the accommodation to be allowed to remain with him but the Rent Controller after obtaining necessary report etc. confirmed the allotment in favour of Mohd. Shafi. Here it may be stated that earlier on 22nd August 1956 Mohd. Shafi had obtained an order from the District Magistrate on his application for allotment as follows: "Allotted to the applicant if not already allotted." 2. On 27th August 1957 Dularey Lal objected on the said order made in favour of Mohd. Shafi alleging that he was the sub-lessee of the shop from Narain Lal but he had admitted Mohd. Shafi also subsequently and that as sub-lessee he has a right to remain in possession of the shop which, therefore, was not vacant. These facts appeared from the record of the Rent Controller which had been sent for in this case. Upon the said objection having been filed the Rent Controller made fresh enquiry through the Rent Control Inspector and himself but rejected it on 24th November 1956. At the same time he made an order directing a notice under Sec. 7-A (i) to be issued against Dulare Lal. There was fresh enquiry by the Rent Controller but once again the Rent Controller rejected the objection of Dulare Lal and directed him to be evicted. Dulare Lal went up in revision to the Commissioner and the latter by his order dated 11th May 1957 upheld Dulare Lal's objection and set aside the order passed by the Rent Controller. Mohd. There was fresh enquiry by the Rent Controller but once again the Rent Controller rejected the objection of Dulare Lal and directed him to be evicted. Dulare Lal went up in revision to the Commissioner and the latter by his order dated 11th May 1957 upheld Dulare Lal's objection and set aside the order passed by the Rent Controller. Mohd. Shafi then filed the present petition impugning the order of the Commissioner aforesaid. 3. The main ground urged in this case is that the order of the rent Controller allotting the accommodation in favour of the petitioner was duly made under Sec. 7 (2), that there was vacancy of the accommodation and that he had the necessary jurisdiction to make the allotment order. There are other contentions also by the two parties in support of their respective cases but it is not necessary for the purposes of deciding this petition to refer to them here as the same can evidently be disposed of upon this ground alone. There is no dispute that Narain Lal was the principal tenant of the shop. It too is not challenged that Narain Lal made a sub-lease of the shop the difference in this respect only is that according to the petitioner he was the sub-lessee while according to Dulare Lal, he (Dulare Lal) was the sub-lessee and that he had admitted Mohd. Shaft also subsequently. There is no dispute, none at least has been suggested, that the sub-lease by Narain Lal was not in accordance with law. Another fact, which has been admitted, is that Narain Lal surrendered the lease in his favour and it was upon the surrender made by Narain Lal that Mohd. Shafi, came forward with his application for allotment of the accommodation. Petitioner's contention is that upon Narain Lal's making the surrender of the lease there arose a vacancy of the accommodation within the meaning of Sec. 7 of the U.P. Control of Rent and Eviction Act, 1917. Accordingly the Rent Controller was competent to allot the accommodation. Sec. 7 provides in clause (a) of sub-sec. (I). Petitioner's contention is that upon Narain Lal's making the surrender of the lease there arose a vacancy of the accommodation within the meaning of Sec. 7 of the U.P. Control of Rent and Eviction Act, 1917. Accordingly the Rent Controller was competent to allot the accommodation. Sec. 7 provides in clause (a) of sub-sec. (I). "Every landlord shall within 7 days after an accommodation becomes vacant by his ceasing to occupy it or by the tenant vacating it or otherwise ceasing to occupy it or by termination of a tenancy or by release from requisition or in any other manner whatsoever, give notice of the vacancy in writing to the District Magistrate." Sub-sec. (2) empowers the District Magistrate to require by general or special order a landlord not to let or let to any person any accommodation which is vacant or has fallen vacant or is about to fall vacant. There can be no doubt that the right of the District Magistrate to require any accommodation to be let out to any person arises where the accommodation is or has fallen vacant or is about to fall vacant. He will have no such right where the accommodation is neither vacant nor is about to fall vacant. 4. The question which therefore arises is whether the effect of surrender by Narain Lal in this case resulted in a vacancy of the accommodation within the meaning of sub-sec. (2) since it is not the allegation of any party that there was any actual physical vacancy of the shop. The Rent Controller found that there was vacancy because he further held that Mohd. Shaft alone was in possession of the shop and Dulare Lal was occupying the front patra only, otherwise he accepted Mohd. Shafi's plea that the sub-lease was in his favour. The Commissioner on revision did not apparently accept this part of the petitioner's case and was of the view that Dulare Lal was also in, the possession of the shop as a sub-tenant. This is clear from the following observations to be found in his order:- "In this case there was neither an actual vacancy nor a prospective vacancy. The applicant was at the worst an illegal sub-tenant and it is the established law that the provisions of Sec. 7-A cannot be invoked For ejecting even illegal sub-tenants. It is, therefore, obvious that the proceedings have been misconceived. The applicant was at the worst an illegal sub-tenant and it is the established law that the provisions of Sec. 7-A cannot be invoked For ejecting even illegal sub-tenants. It is, therefore, obvious that the proceedings have been misconceived. Moreover as it is an established fact that the applicant has been sitting in the shop along with the opposite party for the last three years, it is inexpedient to evict him now according to the proviso to sub-sec. (1) of Sec. 7-A." 5. Learned counsel for the petitioner has contended that the learned Commissioner has nowhere said in so many words that Dulare Lal was also a sub-tenant and in occupation of the shop as such. It appears that his order does not state that fact in clear terms but at the same time he held, to use his own words, it is an established fact that the applicant along with opposite party Dulare Lal has been in possession of the shop for the last three years. This fact read with the fact earlier stated by him that he was at the worst an illegal subtenant abundantly pointed out that he held Dulare Lal to be in possession of the shop in the capacity of a sub-tenant. 6. This is a finding of fact which will be accepted by this Court in these proceedings. Record of the case was also sent for and having gone through it it cannot be said that the Commissioner's above finding was not based upon any evidence. 7. The next question to be decided is about the effect of surrender by Narain Lal. Sec. 115 of the Transfer of Property Act provides that the surrender of a lease of immoveable property does not prejudice an under lease of the same property previously granted by the lease but the rent payable by and the contracts binding on the under-lessee shall be respectively payable to and enforceable by the lessor. In the present case the under lease was admittedly made along before the surrender. In view, therefore, of Sec. 115 of the Transfer of Property Act, the surrender by Narain Lal did not prejudice the rights of the under lessee which included the right to continue in possession. In the present case the under lease was admittedly made along before the surrender. In view, therefore, of Sec. 115 of the Transfer of Property Act, the surrender by Narain Lal did not prejudice the rights of the under lessee which included the right to continue in possession. Referring to Sec. 111 of the Transfer of Property Act, which provides that a lease of immoveable property determines through surrender, the learned advocate for the petitioner has contended that despite the continuance of the sub-lessee in occupation of the accommodation there was a vacancy for purposes of Sec. 7. He relies on sub-sec. (1) of Sec. 7 wherein it is said that a landlord shall within seven days after an accommodation becomes vacant by termination of tenancy give notice of the vacancy to the District Magistrate. The reasoning advanced is that on a surrender effected by Narain Lal there was a termination of the tenancy and if there was a termination there was necessarily a vacancy in consequence. Clause (a) of Sec. 7 (1) does not lay clown that every termination of tenancy will necessarily lead to a vacancy of the accommodation. On the other hand, it lays down that whenever there is a vacancy through termination of tenancy the landlord shall give notice of the vacancy to the District Magistrate. There may be termination of tenancy and yet there may be no vacancy and such a case will occur where an under lessee, as in the present case, happens to be in occupation of the accommodation. The provisions of Sec. 7-A (1) are attracted in those case only where both, the fact of termination of tenancy and the fact of vacancy, are present. They do not to my mind warrant the interpretation sought to be placed by the learned counsel, namely, that every termination of tenancy is necessarily a vacancy also of the accommodation. I am therefore, unable to accept his contention and there was, in my opinion, no vacancy in this case on the findings reached by the learned Commissioner. 8. It follows from the above discussion that the order of the Commissioner to the effect that the allotment order was not duly made and consequently the notice under Sec. 7-A (I) was misconceived is correct. The petition accordingly fails and is dismissed with costs.