JUDGMENT Bhairo Prasad, Member. - This reference has been made by Additional Commissioner, Moradabad under Section 333-A of U.P. No. 1 of 1951 vide his recommendation dated 22.9.1990. 2. In brief the facts of the case are that Shabir Husain and others filed a suit under Section 198(4) of U.P. Act No. 1 of 1951 in the court of Additional Collector Sambhal, Moradabad. The proceeding was contested and it was dropped by the Additional Collector by his order dated 7.7.1989. Revision was filed against that order before the Additional Commissioner under Section 333-A of U.P. Act No. 1 of 1951. The Additional Commissioner recommended that plot No. 5 area 3.40 acre of village Shakurabad, Tahsil Hasanpur, district Moradabad was recorded as river. The Sub-Divisional Officer changed the category of that land and ordered to enter it in category 6(1) of the Khatauni. The learnend Additional Commissioner is of the opinion that Sub-Divisional Officer has no power to change the category of the land. The land was of public utility recorded under Section 132 of U.P. Act No. 1 of 1951, hence the allotment of that land as non-transferable bhumidhari is illegal. The Additional Commissioner also recommended that no notice under section 198(5) was also given by the trial court. 3. No body has appeared on both sides. Perused the record. No objection has been filed. 4. I fully agree with the recommendation of the learned Additional Commissioner that the Sub-Divisional Officer has no power to change the nature of the land in administrative proceeding. The land which was recorded as bhumidahri is a land of public utility. This can be allotted only to the deserving landless agricultural labourer for asami purpose. However, I do not agree with the recommendation of the learned Additional Commissioner that the notice was not issued under Sub-section 5 of Section 198 of U.P. Act No. 1 of 1951. No notice is essential if the allotment is not cancelled. It is discretion of the trial court to issue notice when there is prima facie case for the cancellation of the allotment. The trial court has recorded a finding that there is no evidence to prove that allottees are the resident of the other circle. The trial court should not come to such a finding. He has to reach on a definite finding whether the allottees are resident of the circle or not. The trial court has recorded a finding that there is no evidence to prove that allottees are the resident of the other circle. The trial court should not come to such a finding. He has to reach on a definite finding whether the allottees are resident of the circle or not. If the allottee are not resident of the circle the patta is liable to be cancelled. If the allottees are resident of the circle then the allotment for such provision of law will be examined. 5. In these circumstances of the case the reference is accepted and the order of the trial court dated 7.7.1989 is set aside and the trial court is directed to re-determine the allotment of the opposite parties in accordance with the above, observation and other legal point of law.