JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Rathod, learned advocate for the petitioner and Mr. Patel, learned AGP for the respondents. 2. In present petition, the petitioner has prayed, inter alia, that: (10)(b) Be pleased to quash and set-aside the three Impugned orders passed by the Respondents (Impugned order dt. 31/12/2001 passed by the respo. No. 1 Revenue Tribunal, in revision No. 31/2001, the Impugned order dt. 31/11/2000, passed by the Deputy Collector, Tharad sub-division, Tharad, the respondent No. 2, in ceiling appeal No. 2/2000 Vashi 9646, and the impugned order dt. 3/1/2000 passed by the Mamlatdar & A.L.T. Wav, in ceiling case No. 1/99 pending on their respective file) and only Survey No. 1628 admeasuring 5 acres and 10 gunthas may kindly be declared as surplus land and/or out of survey Nos. 1627 and 1628 whose total measurement is 11 acres and 34 gunthas, only 5 acres and 6 gunthas may kindly be declared as surplus land." 3. So far as factual background is concerned, it has emerged from the record and from the submissions by learned advocate for the petitioner and learned AGP that: 3.1 The petitioner owned agricultural land bearing Survey Nos. 1005, 1627 and 1628. Total holding of the petitioner was 88 acres and 30 gunthas. 3.2 The Mamlatdar & ALT initiated proceedings under Sections 9 and 26 of Gujarat Agricultural Land Ceiling Act and declared that the petitioner would be entitled to hold/retain 75 acres and 4 gunthas and the Mamlatdar & ALT declared that the petitioner held excess land to the extent of 5 acres and 6 gunthas. 3.3 Thereafter, the petitioner was granted opportunity to exercise choice as to which parcel of land the petitioner would prefer to retain. 3.4 After the petitioner exercised his choice and of his own choice the petitioner decided to retain Survey No. 1628 and to let-go Survey No. 1627, the Mamlatdar & ALT declared Survey No. 1627 admeasuring 6 acres and 24 gunthas as surplus land and took possession of said parcel/survey number of land. 3.5 However, the petitioner felt aggrieved upon declaration of Survey No. 1627 as excess land. 3.5 However, the petitioner felt aggrieved upon declaration of Survey No. 1627 as excess land. According to the petitioner, out of said Survey No. 1627 the Mamlatdar & ALT ought to have and could have taken possession of only 5 acres and 6 gunthas land and the authority should not have taken possession of balance 1 acre and 18 gunthas land i.e. the Mamlatdar ought not have taken possession of entire Survey No. 1627. 3.6 According to the petitioner, he suffered loss of 1 acre and 18 gunthas. 3.7 Therefore, the petitioner filed appeal before the Deputy Collector. The Deputy Collector rejected the appeal. 3.8 The petitioner, therefore, filed revision application before the learned Tribunal. The learned Tribunal also rejected the revision application. Feeling aggrieved by the said order, the petitioner has taken out present petition. 4. Mr. Rathod, learned advocate for the petitioner submitted that at the relevant time, the authority declared that the petitioner had excess land to the extent of 5 acres and 6 gunthas. Upon said declaration, the authority declared Survey No. 1627 as excess land, though the area of said Survey No. 1627 is 6 acres and 24 gunthas and took possession of said entire plot and the petitioner, consequently, suffered loss of 1 acre and 88 gunthas. Mr. Rathod, learned advocate for the petitioner further submitted that the petitioner is owner of adjoining and contiguous land bearing Survey No. 1628. He submitted that the parcel of land, i.e. Survey No. 1628 admeasures 5 acres and 6 gunthas. He submitted that since the petitioner is owner of adjoining land, if the authority had taken possession of only 5 acres and 6 gunthas then also the balance part of land admeasuring 1 acre and 18 gunthas would not have resulted into or it would not have formed or created a fragment. He submitted that the respondents committed mistake in declaring entire Survey No. 1627 as excess land and in taking over possession of entire Survey No. instead of taking possession of land admeasuring only 5 acres and 6 gunthas, out of Survey No. 1627. He submitted that the respondents committed mistake in declaring entire Survey No. 1627 as excess land and in taking over possession of entire Survey No. instead of taking possession of land admeasuring only 5 acres and 6 gunthas, out of Survey No. 1627. He submitted that the Collector as well as the learned Tribunal failed to appreciate the petitioner's claim that since the petitioner is owner of contiguous land, question of fragmentation would not arise if the land admeasuring 5 acres and 6 gunthas, out of Survey No. 1627 is taken over and vested in government. Learned advocate for the petitioner submitted that since both the authorities have failed to appreciate the said aspect, the impugned order deserves to be quashed and set aside. To support his contentions learned advocate for the petitioner relied on the decisions in the cases of Mahida Chhatrasing Gulabsing vs. Mahida Amarsang Mansang & Ors. 2008 (1) GLR 471], Rathod Nayamatkhan Ahmedkhan (Decd.) through his heirs & Lrs vs. M.K. Dass, Dy. Collector, Dabhoi & Ors. 1998 (3) GLR 2547 ] and Ramjibhai Barjulbhai vs. Bhaglabhai Jeshalbhai & Ors. 1986 GLH 1120 ]. 5. Mr. Patel, learned AGP opposed the submissions by Mr. Rathod, learned advocate for the petitioner and submitted that the order passed by the learned Tribunal and by the Collector do not suffer from any error. He submitted that after the competent authority declared that the petitioner held excess land to the extent of 5 acres and 6 gunthas, right of choice was granted to the petitioner and it was the petitioner who exercised right of choice to retain Survey No. 1628 and the petitioner decided, of his own choice, to let-go and to give up ownership and possession of Survey No. 1628 and that, therefore, the petitioner is not right or justified in claiming that the authorities have committed any illegality or the learned Tribunal or the Collector has committed error in taking over possession of the land in question. As regards the issue related to fragmentation, the learned AGP relied on the discussion by the learned Tribunal in the impugned order and on the findings and the decision recorded by the learned Tribunal and he submitted that there is no error in impugned order. 6. As regards the issue related to fragmentation, the learned AGP relied on the discussion by the learned Tribunal in the impugned order and on the findings and the decision recorded by the learned Tribunal and he submitted that there is no error in impugned order. 6. I have considered submissions by learned advocate for the petitioner and learned AGP and I have also considered the material on record as well as impugned order. 7. At the outset, it is appropriate and necessary to mention that in light of peculiar facts and circumstances of present case Mr. Rathod, learned advocate for the petitioner submitted that the petitioner would be satisfied if he is permitted to offer land bearing Survey No. 1628 (instead of Survey No. 1627 originally offered by him) and to hand over vacant and unencumbered possession of land bearing Survey No. 1628 to the authority under the Ceiling Act and to request the authority to take possession of Survey No. 1628 instead of Survey No. 1627 and return the land bearing Survey No. 1627 so that the petitioner may not have to suffer loss of land admeasuring about 18 gunthas. Having regard to said submission, which prima facie appeared to be reasonable, the Court passed order dated 27.3.2017 so as to get response from the respondent State. 8. However, upon subsequent instructions from the petitioner, learned advocate for the petitioner informed the Court that the petitioner has reconsidered the matter and he is not inclined to make such request and he wants to contest the petition on merits. 9. It is not in dispute that prior to initiation of the proceedings by the authority under the Agricultural Land Ceiling Act, 1960 ('the Ceiling Act' for short) total holding of the petitioner was 80 acres and 30 gunthas. 9.1 In respect of petitioner's said holding the authority initiated proceedings under the Ceiling Act. 9.2 In the proceedings (instituted by the Mamlatdar & ALT under Sections 9 and 26 of the Land Ceiling Act) the authority reached to the conclusion that the petitioner's holding was in excess of permissible limit by 5 acres and 6 gunthas. Differently put, it was concluded by the competent authority that the petitioner held excess land to the extent of 5 acres and 6 gunthas. Differently put, it was concluded by the competent authority that the petitioner held excess land to the extent of 5 acres and 6 gunthas. 9.3 At this stage, it is pertinent and necessary to mention that in entire proceeding, i.e. either before the Collector or before the learned Tribunal or even in this petition or even at the time of hearing of this petition, the petitioner has never challenged the said conclusions and findings by the competent authority under the Ceiling Act so far as the declaration with reference to the extent of surplus holding is concerned. 9.4 Thus, the said conclusions and findings by the competent authority are not in dispute. Actually, the said finding and conclusion have attained finality. 10. Actually, at the time of hearing of present petition, in reply to the query of the Court, Mr. Rathod, learned advocate for the petitioner expressly and specifically clarified that the petitioner is not disputing the conclusions and findings by the competent authority so far as excess holding is concerned and the petitioner accepts the conclusion that his holding was in excess of 5 acres and 6 gunthas. 10.1 Mr. Rathod, learned advocate for the petitioner also clarified that the petitioner's grievance and dispute is only with regard to the land admeasuring 1 acre and 18 gunthas which now vests in the government on account of the fact that the authorities declared entire Survey No. 1627 as excess land and took possession of entire plot and thereby took possession of more land. 11. 11. Thus, the dispute in present petition is limited and is restricted to the petitioner's contention that the authority should not continue to hold the land admeasuring 1 acre and 18 gunthas which is more than the area/extent declared as surplus by the competent authority in the ceiling proceedings and the decision to the effect that the petitioner's holding was in excess of permissible limit/ceiling as well as the decision as regards the extent of excess holding (5 acres 6 gunthas) are not in dispute 11.1 The only ground on which the petitioner has assailed the order passed by the learned Tribunal is that the petitioner holds adjoining land and therefore, there was no possibility of the said 1 acre and 18 gunthas of land resulting into fragmentation if the authority had taken possession of only 5 acres and 6 gunthas, out of Survey No. 1627 and said balance land, i.e. 1 acre and 18 gunthas would not have resulted into a fragment. 12. In this context, the observations and findings by the learned Tribunal are relevant. In its order the learned Tribunal has considered and dealt with the contentions raised by the petitioner and after taking into relevant provisions the learned Tribunal held that the Act requires that no survey number or sub-division of a survey number shall be divided in such a way that a fragment is created. 13. In present case it is pertinent to note that the findings and conclusions by the authority under the Ceiling Act have attained finality. 13.1 It is also pertinent that after the competent authority, under the provisions of the Land Ceiling Act, recorded the conclusion that the petitioner held excess land to the extent of 5 acres and 6 gunthas, the authority offered right of choice to the petitioner. 13.2 At that point of time the petitioner had opportunity to exercise his choice of retaining Survey No. 1627 (since its area was more than the area/land which was declared excess) and to let-go plot bearing Survey No. 1628 (since its area was just equivalent to the area/land declared excess). 13.3 However, for the reasons best known to him and after taking into account his own interest, the petitioner, who, at the relevant time, exercised choice and preference and took conscious decision to retain Survey No. 1628. 13.3 However, for the reasons best known to him and after taking into account his own interest, the petitioner, who, at the relevant time, exercised choice and preference and took conscious decision to retain Survey No. 1628. Therefore, after declaring the said land/survey number as excess holding, the authority took possession of Survey No. 1627. 14. Besides this, so far as the issue related to the consequential action of taking over the possession of excess land is concerned, it is pertinent that the said action was taken in light of and on account of the choice exercised by the petitioner and that, therefore, the contention now raised by the petitioner and/or above mentioned decisions cannot rescue the case of the petitioner. 14.1 In this context and on this count it is also pertinent to note that after the competent authority under the Ceiling Act passed the order and declared that the petitioner held 5 acres and 6 gunthas land in excess and the petitioner/land owner did not dispute the declaration about excess holding and when the authority offered the opportunity to the petitioner to exercise the choice in respect of the land which he would prefer to and want to retain the petitioner himself, at that time, consciously exercised the choice and took well informed and conscious decision with the knowledge that the area of Survey No. 1627 is more than the area declared surplus by the authority and the petitioner did not raise any objection at the time when possession was taken over. The petitioner raised the dispute subsequently i.e. when he filed the appeal and when the question of taking possession of such excess land arose, the petitioner, having already exercised his choice, did not oppose/object the action of taking over the possession at the time when the possession of land in question was actually taken over by the authority. 14.2 Having exercised the said option and choice the petitioner is not justified in finding fault with the authority and/or with the orders passed by the Collector and the learned Tribunal. 14.3 In this view of the matter, now neither the contention on the ground of ownership of adjoining plot of land/survey number nor the contention on strength of above mentioned decisions would help the petitioner. 14.3 In this view of the matter, now neither the contention on the ground of ownership of adjoining plot of land/survey number nor the contention on strength of above mentioned decisions would help the petitioner. Actually, in light of above mentioned facts and circumstances any scope for raising objection or contention against the action of the authority or impugned orders does not exist or survive. 15. Nonetheless, since the petitioner has raised the contention that the authorities should have taken over possession of only 5 acres and 6 gunthas of land out of the plot (Survey No. 1628) and possession of other/balance part of the land of said plot/Survey No. 1628 i.e. 1 acre and 18 gunthas should not have been taken over and said small piece of land would not have resulted into fragment, the Court should consider the said contention. 16. When the provisions under Sections 2(4) which defines the term of 'fragment', section 2(8) which defines the term 'owner', section 7 which contains provision concerning transfer and lease of fragments, section 8 which prescribes fragmentation, section 8AA which prescribes restriction on partition of land of the Fragmentation Act are taken into account, then it becomes clear that the decision by the learned Tribunal cannot be said to be erroneous and arbitrary. 17. On this count, it is necessary to keep in focus that whether a transaction or transfer of land would result into a fragmentation or not has to be considered and decided with regard to the particular plot of the land and not with regard to total holding of the concerned land owner and/or with regard to the other plot of land held by the owner/transferor. 18. In this context, it is necessary to take into consideration (i) above mentioned provisions under the Fragmentation Act viz. 18. In this context, it is necessary to take into consideration (i) above mentioned provisions under the Fragmentation Act viz. sections 2(4), 7, 8 and 8AA of the Act; and (ii) the fact that in present case the question related to transfer/partition of land in question has arisen in view of the decision by the competent authority under the Gujarat Agricultural Lands Ceiling Act; and (iii) the said decision/declaration has attained finality; and (iv) after the decision of the authority under the Ceiling Act, the petitioner exercised right of choice and it is the petitioner who let-go Survey No. 1628 and decided/preferred to retain Survey No. 1627; and (v) the concerned authority took over the possession of the land in question pursuant to and in accordance with the choice declared by the petitioner (i.e. pursuant to the right of option/choice exercised by the petitioner). 19. So far as above mentioned provisions are concerned, the said provisions read thus: "2(4) "Fragment" means a plot of land of less extent than the appropriate standard area determined under this Act. 2(8) "owner" means in the case of unalienated land the occupant or tenure-holder and when such land has been mortgaged owner means the mortgagor; in the case of alienated land owner means the superior holder or Girsadar: 7. Transfer and lease of fragments.- (1) No person shall transfer any fragment in respect of which a notice has been given under sub-section (2) of section 6 except to the owner of a contiguous survey number or recognised sub-division of a survey number. Provided that the holder of such fragment may mortgage or transfer it to the State Government or a land mortgage bank or any other co-operative society as security for any loan advanced to him by the State Government or such bank or society, as the case may be. (2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement no such fragment shall be leased to any person other than a person cultivating any land which is contiguous to the fragment. 8. Fragmentation prohibited.- No land in any local area shall be transferred or partitioned so as to create a fragment. 8AA. Restriction on partition of land. 8. Fragmentation prohibited.- No land in any local area shall be transferred or partitioned so as to create a fragment. 8AA. Restriction on partition of land. - (1) Where, by transfer, decree, succession or otherwise, two or more persons are entitled to shares in an undivided agricultural land in any local area for which standard areas have been fixed, and the land has to be partitioned among them, such partition shall be effected so as not to create a fragment. (2) Where such partition is made by the Court or the Collector, the following procedure shall be adopted:- (a) If, in effecting a partition among several co-sharers, it is found that a co-sharer is entitled to a specific share in the land and cannot be given that share without creating a fragment, he shall be compensated in money for that share. The amount of compensation shall be determined so far as practicable in accordance with the provisions of section 23 of the Land Acquisition Act, 1894. (b) If, in effecting a partition, it is found that there is not enough land to provide for the shares of all the co-sharers in accordance with the provisions of sub-section (1), the co-sharers may agree among themselves as to the particular co-sharer or co-sharers who should get the share of land and which of them should be compensated in money. In the absence of any such agreement, the co-sharers to whom a share of land can be provided and those to whom money compensation should be given shall be chosen by lot in the manner prescribed. (c) The compensation shall be payable by each co-sharer in proportion to the excess value of land he gets over the share of land legally due to him, and such co-sharer shall deposit the proportionate amount of compensation in the manner prescribed before taking possession of the share allotted to him. On his failure to do so, his share shall be allotted to any other co-sharer to whom land has not been previously allotted and who is chosen in the manner provided in clause (b) subject to the payment of similar compensation to the co-sharers not getting shares of land. On his failure to do so, his share shall be allotted to any other co-sharer to whom land has not been previously allotted and who is chosen in the manner provided in clause (b) subject to the payment of similar compensation to the co-sharers not getting shares of land. (d) If none of the co-sharers to whom land has been allotted under clause (c) pays the compensation and takes the share, the share shall he sold in auction to the highest bidder, and the purchase many shall be paid to the co-sharers not getting land in proportion to their respective shares. (e) Where the parties agree upon any other method of partition which will not result in the creation of a fragment, that method shall be followed in effecting partition. (3) Where a partition is effected in execution of a decree all questions relating to the partition of the land and appointment of compensation shall be decided by the Court executing the decree or by the Collector effecting the partition, as the case may be, in accordance with the provisions of sub-section (2)." 19.1 Section 2 defines and explains the term 'Fragment' and section 7 restricts transfer or lease of fragment to any person other than owner of contiguous survey number or the person who is cultivating contiguous land and section 8 prohibits creation of a fragment or 'fragmentation'. Section 8AA deals with the situation where fragment may arise on account of partition or succession or execution of decree. From cumulative effect of above mentioned provisions it becomes clear that the Act abhors fragmentation and aims at avoiding fragmentation in all circumstance and makes provision to avoid fragmentation even in case of succession or partition or transfer or execution of decree. 20. It is necessary to recall that for the purpose of taking over possession of excess holding, the authority had granted opportunity to the petitioner to select the land which he would prefer to retain and it is the petitioner who consciously exercised his choice and selected Survey No. 1628 and that, therefore, the authority allowed the petitioner to retain the said land of his choice and it took over possession of Survey No. 1627. Undisputedly, the said survey number covers more area/land than the area declared surplus under the Ceiling Act. 21. Undisputedly, the said survey number covers more area/land than the area declared surplus under the Ceiling Act. 21. In this background the petitioner subsequently and as an afterthought raised dispute and claimed that the concerned authority under the Ceiling Act should not have taken over possession of entire survey number but should have taken over possession of the land equal to the area declared surplus under the Ceiling Act out of Survey No. 1628 and the authority should have left the balance/additional area (i.e. 1 acre and 18 gunthas) to be retained by the petitioner. 22. Having regard to the standard area determined under the provisions of the Act, the authority found/noticed that if the possession of the land equal to the area declared surplus is taken over, then it would leave behind a fragment which would be impermissible in view of the provisions under section 8 of the Act. According to the authority if that taken possession of a part of land of said survey number, i.e. if it had taken possession of land admeasuring only 5 acres and 6 gunthas, then the land admeasuring 1 acre and 18 gunthas would have resulted into a parcel of land less than standard area determined under the Act and such division of Survey No. 1627 could not have been made and that, therefore, the authority took possession of the said land which now vests in government. Thus, so as to avoid fragmentation, the authority took over possession of entire plot/survey number. 23. However, on the strength of the fact that he holds adjoining land, i.e. Survey No. 1627, the petitioner subsequently (i.e. after having consciously preferred to let-go Survey No. 1628 and to retain Survey No. 1627) claimed that if the authority had taken over possession of land equal to the area declared surplus by the authority under the Ceiling Act, then the balance area would not have resulted into fragment and in any case even if the balance area would result into fragment, it would not be hit by the prohibition under section 8 because he holds adjoining land. 24. The said contention is considered and dealt and decided by the learned Tribunal. Though, at first blush the contention may appear attractive, however, the discussion by the learned Tribunal in the order makes it clear that in light of the provisions under the Act, said submission is not sustainable. 25. 24. The said contention is considered and dealt and decided by the learned Tribunal. Though, at first blush the contention may appear attractive, however, the discussion by the learned Tribunal in the order makes it clear that in light of the provisions under the Act, said submission is not sustainable. 25. When the petitioner raised dispute against said decision of the authority the learned Tribunal considered and decided said contention and held, inter alia, that: "Since sub divisions of the land of S. No. 1627 would be resulting in the creation of a fragment admeasuring 1 acre 18 gs., the whole of the S. No. 1627 admeasuring 6 acres 24 gs. is therefore required to be declared as surplus land. The learned advocate for the applicant argued that since the petitioner is holding contiguous land adjoining S. No. 1627 sub-division of the said S. No. 1627 should not be objectionable under the Bombay Prevention of Fragmentation & Consolidation of Holdings Act, 1947 (hereinafter referred to as "the Fragmentation Act"). I find that this argument of the learned advocate is also not convincing since the whole spirit of the Fragmentation at is for prevention of the creation of fragmented land holdings. Sec. 8 of the Fragmentation Act puts an absolute embargo as under: "8. No land in any local area shall be transferred or partitioned so as to create a fragment." I also find that looking to the provisions of sec. 18 of the Act, it is clear that the Act has visualised both the contingencies of (i) more area being declared as surplus on account of the provisions of Sec. 18(1)(b), that is to the extent of the area of the fragment; and (ii) less area (to the extent of the area of the fragment) being declared as surplus by virtue of provisions of Sec. 18(1)(a) read with Sec. 18(2). [Sec. 18(2) - Where any survey number or a sub-division of a survey number is excluded under clause (a) of sub-section (1), the person holding it shall be entitled to hold it, notwithstanding the provisions of section 6]. In other words, the Act requires that no survey number or sub-division of a survey number shall be divided in such a way that a fragment is created." 26. In this context the learned counsel for the petitioner relied on above mentioned decisions. I have considered the said decisions. In other words, the Act requires that no survey number or sub-division of a survey number shall be divided in such a way that a fragment is created." 26. In this context the learned counsel for the petitioner relied on above mentioned decisions. I have considered the said decisions. It is relevant to mention that in the cited cases, unlike present case, the sale/transfer was voluntary whereas in present case the authority was obliged to take over possession on account of the decision under Ceiling Act, which had attained finality. Secondly, in present case it is the petitioner who took conscious and informed decision, with full knowledge about the area of the plot in question, in decided to let-go the land (survey number) in question and to retain the other parcel of land. The authority merely took over possession of the land which the petitioner decided to hand over. At that stage the authority could not have created a fragment by taking over possession of only part of the land/survey number. Thus, the cited cases stand on different facts and they are no assistance to present petitioner, in light of peculiar facts of this case. 27. In this view of the matter, the grievance by the petitioner (who, of his own choice, decided to retain Survey No. 1628 and also declared that possession of the plot bearing Survey No. 1627 may be taken over) is not justified. 28. The land owner who, consciously of his own choice and after considering and weighing his own interests and with full knowledge of all facts and in exercise of his right declare his preference for retaining possession of particular parcel of land and to hand over other parcel of land to the Ceiling Authority cannot allege or claim that the authority acted arbitrarily while taking possession of surplus land, more particularly when the order declaring surplus holding is accepted and not challenged. 29. Besides this, the decision by the learned Tribunal, even otherwise, does not suffer from any error. The said decision is in consonance with the provisions of the Fragmentation Act. Therefore, there is no reason or justification to interfere with the order passed by the learned Tribunal. The petitioner has failed to make out any ground against the impugned order. Therefore, the petition fails and deserves to be rejected and the petition is hereby rejected. Rule is discharged. 30. Therefore, there is no reason or justification to interfere with the order passed by the learned Tribunal. The petitioner has failed to make out any ground against the impugned order. Therefore, the petition fails and deserves to be rejected and the petition is hereby rejected. Rule is discharged. 30. Before concluding it is clarified that if the petitioner still wants to approach the competent authority with his request to offer Survey No. 1628 (vacant and unencumbered possession) instead of Survey No. 1627, then it will be open to the petitioner to approach concerned authority with appropriate application/request within four weeks from the receipt of the certified copy of this judgment. If the petitioner submits such application/request to the concerned authority, then the authority would consider the same and pass appropriate order having regard to the facts and circumstances of the case and relevant provisions under the Act and the Gujarat land Revenue Code as expeditiously as possible and preferably within three months from the receipt of the application.