JAYANT PATEL, J. ( 1 ) DRAFT amendment granted. ( 2 ) THE short facts of the case are that the petitioners were holding various lands which have been acquired for Vatrak Irrigation Project. It appears that the State Govt had formulated the policy for rehabilitation scheme and as per the policy vide order dated 9. 2. 1999 the petitioners were allotted the land from the land bearing S. No. 712 of village Malpur and the petitioners were also called upon to make payment of Rs. 500/-per acre and each of the petitioners was allotted different land approximately admeasuring 4 acres which are mentioned in the ordr. It appears that the petitioners paid the amount at the rate of Rs. 500/-per acre and the lands came to be allotted. On paper, it appears that the possession was also handed over. However, subsequently, it was learnt that the land bearing S. No. 712 is forming part of forest land and therefore it could not have been allotted for cultivation. It appears that the notice dated 30. 7. 99 was issued by the Conservator of Forests on the ground that the land is part of forest land and therefore the petitioners are prevented from entering the land in question by damaging to the existing forest. ( 3 ) IT is under these circumstances the petitioners have preferred the Special Civil Application No. 5697/99 for quashing the notice dated 30. 7. 99 restraining the petitioners from entering into the land in question. ( 4 ) IT appears that pending petition, the order dated 1. 3. 01 came to be passed by the Dy. Collector, Land Acquisition and Rehabilitation whereby the allotment made in favour of petitioners was revised on two grounds, i. e. (i) the land allotted from S. No. 712 is part of forest land and therefore it was considered for allotment of alternative land bearing S. No. 177/1 at village Piprana, Tal. Malpur and (ii) the land was required to be allotted per Khatedar whereas the actual land allotted was on the basis of per person and therefore the allotment made to the petitioners of both the petitions were revised and per khatedar the land is allotted situated at village Piprana. In view of the aforesaid order dated 1. 3. 01 passed by the Dy. Collector pending the petition petitioners have amended the petition challenging the orders passed by the Dy. In view of the aforesaid order dated 1. 3. 01 passed by the Dy. Collector pending the petition petitioners have amended the petition challenging the orders passed by the Dy. Collector, dated 1. 3. 01. ( 5 ) THE Special Civil Application N. 1293/05 is preferred by the legal representatives of the deceased Manilal Kalidas Pandya who was also earlier granted land bearing S. No. 712 of village Malpur, but was not granted any land in the later order dated 1. 3. 01 passed by the Dy. Collector. Therefore, the said petitioners have preferred separate petition subsequently in the year 2005 for the very reliefs which were earlier prayed for prior to the amendment by the petitioners of Special Civil Application No. 5697/99. It appears that during the course of hearing of Special Civil Application No. 5697/99 it transpired that in the later order of the Dy. Collector which is passed in the year 2001 the petitioners of Special Civil Application No. 1293/05 is not at all allotted any land and upon further inquiry the affidavit in reply has been filed by the Dy. Collector (Land Acquisition and Rehabilitation) Daroi Project, respondent No. 3 in the said petition, contending interalia that as Manilal K. Pandya was already paid grant amount he was not entitled for allotment of land being part of Rehabilitation scheme and for such purpose the proposal is already forwarded and therefore it has been submitted that Manilal K. Pandya would not be entitled to claim any land from the Govt. Under these circumstances, petitioners of Special Civil Application No. 1293/05 have approached this court. ( 6 ) HEARD Mr. R. N. Shah for the petitioners in both the petitions and Mr. Trivedi, Ld. Addl. AG with Ms. Sangita Vishen, Ld. AGP for the State authorities. ( 7 ) IT appears from the notification was issued for declaration of forest and the land bearing S. No. 712 was a part of forest land. As such there is no dispute on the point that if the land is part of forest land, it could not have been allotted by the State Govt in the year 1999, more particularly, after the enactment of Forest (Conservation) Act. However, Mr. Shah, Ld. As such there is no dispute on the point that if the land is part of forest land, it could not have been allotted by the State Govt in the year 1999, more particularly, after the enactment of Forest (Conservation) Act. However, Mr. Shah, Ld. advocate for the petitioners submitted that as per the earlier affidavit in reply filed in the petition and the record shows that the land was resumed back by the revenue department of the State Govt in the year 1978 and therefore the land shall stand excluded from the forest land. He also submitted that there is also reference to the order dated 9. 2. 1999 in this regard and therefore once the land having been allotted to the petitioners and that the petitioners having altered their position by paying the amount and having received the possession of the land bearing S. No. 712 it is not open to the other department, namely, Forest Department of the State Govt to contend that the land is a part of forest land and the petitioners have no right to enter over the land. ( 8 ) IT appears that there is no material produced on record to show that once the land bearing S. No. 712 was declared as the forest land as per the notification dated 31. 5. 61 there is another notification whereby the aforesaid land is either excluded from forest land or another notification for declaring the area as forest by excluding the area of land bearing S. No. 712 is published. The action of the Govt for declaring the forest either for inclusion of certain land in the forest or for exclusion of any land from the forest is required to be published in the official gazette. Merely, because there is some revenue entry or the resumption by administrative order of revenue authority itself is not sufficient to exclude the area from the forest. In any case, the matter is thereafter once again considered by the authority and not only the earlier affidavit filed in the petition is explained, but, it has been categorically stated that the land which has been allotted vide order dated 9. 2. 1999 is part of forest land. Even in subsequent order, dated 1. 3. 01 passed by the Dy. 2. 1999 is part of forest land. Even in subsequent order, dated 1. 3. 01 passed by the Dy. Collector (Land Acquisition and Rehabilitation) it has been decided to allot another land in view of deliberations between the Secretary of Forest Dept and the Revenue Dept. Therefore, keeping in view the additional affidavit in reply filed by Deputy Collector (Land Acquisition and Rehabilitation) dated 9. 8. 01 read with the notification on the record shows that the land bearing S. No. 712 of village Malpur is declared as reserved forest under the Indian Forest Act. If the land is part of forest land, then, in that case, after the enactment of Forest (Conservation) Act, 1980, there is no power with the State Govt to allot the land without prior approval of the Central Govt. It is an admitted position that the order of allotment is not made treating the land as part of forest land nor any approval of the Central Govt appears to have been taken for the allotment land bearing S. No. 712. Therefore at the most the allotment of land as per the order dated 9. 2. 1999 by the Dist. Collector, Sabarkantha can be said as in breach of the provisions of Forest (Conservation) Act, 1980 and therefore the forest officer was legally justified in prohibiting the entry of the petitioners over the land bearing S. No. 712 and therefore the relief prayed for by the petitioners for challenging the communication dated 30. 6. 99 by the Forest Officer can not be granted. ( 9 ) THE aforesaid takes me to examine the challenge made by the petitioners in the amended portion of the petition against the order, dated 1. 3. 01 passed by the Dy. Collector. As observed earlier, by the said impugned order, the land is allotted by the Govt at village Piprana bearing S. No. 1771/1. However, two grievances are raised on behalf of the petitioners by Mr. Shah for challenging the said order dated 1. 3. 01. The first grievance is that the land which was already allotted to each person admeasuring 4 acres is revised and now the said land is allotted on the basis of criteria of per Khatedar and the another grievance raised by Mr. Shah for challenging the said order dated 1. 3. 01. The first grievance is that the land which was already allotted to each person admeasuring 4 acres is revised and now the said land is allotted on the basis of criteria of per Khatedar and the another grievance raised by Mr. Shah on behalf of the petitioners is that the land which is proposed to be allotted at village Piprana is not at all cultivable land and therefore it is impossible for the petitioner to cultivate the land since the land is rockey and there are Babul trees. In response to the same, Ld. Addl. AG Mr. Kamal Trivedi appearing for the State authorities declared before the court that same treatment shall be given for the purpose of rehabilitation in the matter of allotment of land. He submitted that as per the policy of the State Govt for all those persons whose lands are acquired in Vatrak Irrigation Project land is allotted on per Khatedar basis and not on the basis of per person. Mr. Trivedi further declared before the court that as the major object of the allotment of land is for rehabilitation, the Govt will see to it that the land is made cultivable by applying machineries or by incurring expenses and the petitioner may take over the possession thereafter as per order dated 1. 3. 01. The Ld. Addl. AG also declared that the aforesaid work of making the land as cultivable shall be completed within some reasonable time as it may deem fit and proper by this court. ( 10 ) ON the aspect of revision of allotment which was already made as per order of 1999 and subsequently revised as per order of 2001, it appears that in normal circumstances as per resolution dated 5. 5. 1972 the allotment of land shall be on the basis of per Khatedar. However, as the Ld. Addl. AG has made statement to give same treatment to persons who are to be rehabilitated as per resolution of 1977 concerning to Vatrak Irrigation project it can not be said that the order of the Dy. Collector revising the allotment on the basis of the resolution of 1977 is illegal. In any case, when the same treatment is to be given as per the declaration made by the Ld. Addl. Collector revising the allotment on the basis of the resolution of 1977 is illegal. In any case, when the same treatment is to be given as per the declaration made by the Ld. Addl. AG, the same will take care of the situation in as much as if the other affected persons are allotted land on per Khatedar basis the petitioner would be entitled for the land only on that basis, but, if the other affected persons are allotted land not on the basis of per Khatedar but on the basis of per person the State Govt shall act upon the statement made by the Ld. Addl. AG and make modification in the order dated 1. 3. 01 to that extent if required. However, the land which is allotted and which may be allotted shall be from the land situated at Piprana, Tal. Malpur because the other portion of the land is allotted at village Piprana bearing S. No. 177/1 for the purpose of rehabilitation to the affected persons whose lands are acquired for Vatrak Irrigation Project. Similarly, when the declaration is made by the Ld. Addl. AG on behalf of the State Govt to see that the land allotted is made cultivable by removing rocks and babul trees, the said assurance shall be complied with by taking necessary steps preferably within a period of three months from the date of declaration by the concerned petitioner that he/they are ready to take possession of the land situated at village Piprana. ( 11 ) SO far as the petitioners of Special Civil Application No. 1293/05 are concerned, it appears from the affidavit in reply filed on behalf of respondent No. 3 that when the amount was paid to deceased Manilal Pandya he has executed an undertaking and as per undertaking copy whereof is produced at annexure "ii, it was specifically agreed not to claim any land in lieu of amount of grant. Once such undertaking having been executed and amount having been received by Manilal Pandya who is now deceased it does not lie in the mouth of the petitioners who are legal representatives of the deceased Manilal Pandya to contend that as per order of 1991 at the most the Govt would be entitled to recover the amount of grant and the order of allotment of land must be retained. As such, it appears that Manilal Pandya was not entitled for allotment of land since the amount of grant was already paid to him and in view of undertaking land could not have been allotted. Therefore the authority is right in contending that by mistake the order came to be passed for allotment of land. ( 12 ) THERE is reference to the notice dated 30. 6. 99 by the Forest Dept concerning the position of the present petitioner would be the same as that of the petitioners of Special Civil Application No. 5697/99. Therefore, as such the petitioners of Special Civil Application No. 1293/05 would not be entitled to the relief against the action of the forest department nor would be entitled to the other land at village Piprana or other place in lieu of the land allotted vide order dated 9. 2. 1999 from S. No. 712 which is held to be of forest department. ( 13 ) MR. SHAH, Ld. advocate for both the petitioners lastly submitted that all the petitioners who were allotted land vide order, dated 9. 2. 1999 have deposited the amount in pursuance of the order, dated 9. 2. 1999 by the State Govt at the rate of Rs. 500/-per acre and therefore he submitted that even if this court finds that the revision of allotment of land at village Piprana vide order dated 1. 3. 01 is legal and the petitioners of Special Civil Application No. 1293/05 are not entitled to the land in view of the earlier allotment, then also in any case they would be entitled to refund of amount with reasonable interest as it may deem fit by this Honourable Court. It appears that the aforesaid prayer on behalf of the petitioners appears to be reasonable. When all the petitioners had altered their position by paying the amount, even if it is found that there was no authority with the revenue department of the State Govt to allot the lands of the forest department, then also the State Govt would be required to refund the amount to the concerned person with reasonable interest at the rate of 12% p. a. from the date of deposit till the actual refund. When the State Govt has not allotted the land on account of revisional order passed in the year 2001 the amount already paid is required to be refunded to the concerned person and as the money is enjoyed by the State Govt the reasonable interest also deserves to be awarded to such person who paid the amount by relying upon the order of the year 1999. ( 14 ) IN view of the above, the relief prayed for by the petitioners for challenging the action of the forest department of the State Govt can not be granted. ( 15 ) SO far as the challenge to the revision of allotment and the allotment of land at Piprana are concerned, the decision in revision of allotment is not interfered with upon the statement made by the Ld. Addl. AG on behalf of the State Govt to give the same treatment to the petitioner of Special Civil Application No. 5697/99 with other persons whose lands are acquired in Vatrak Irrigation project for rehabilitation. The allotment of land at village Piprana is also not interfered with on the declaration and the statement made by the Ld. Addl. AG as recorded hereinabove to make the land cultivable by removing rocks and babul trees within a period of three months from the receipt of the order of this court and declaration in writing by the petitioner for readiness to accept the possession of the land at village Piprana. It is further directed that the aforesaid statement made by the Ld. Addl. AG shall be complied with by the concerned officer of the State Govt and thereafter the possession shall be handed over within a period of one month from the date on which such lands at village Piprana are made cultivable. It is also directed that in view of the order of 2001 for revision of allotment of the land or in view of the statement made by the Ld. Addl. It is also directed that in view of the order of 2001 for revision of allotment of the land or in view of the statement made by the Ld. Addl. AG for giving same treatment to all affected persons whose lands are acquired in Vatrak Irrigation project for rehabilitation, If any of the petitioners who have paid the amount is not allotted the land, then in that case the amount paid by the concerned allottee/petitioner or his legal representatives shall be refunded with interest at the rate of 12% p. a. from the date of deposit till actual payment within three months from the date of receipt of writ of this court. ( 16 ) SUBJECT to aforesaid observations and directions rule in each petition is discharged. Considering the facts and circumstances, there shall be no order as to costs. .