The right of pre-emption is a weak right and a clog on the right of the owner to alienate his property. The burden of proof lies with the petitioner to establish pre-emption rights.

ORDER

Rajesh Shankar, J. - The present writ petition has been filed for quashing the order dated 31.07.2015, passed by the Additional Member, Board of Revenue, Jharkhand, in Case No. 05/2012 (Revenue Revision) whereby the learned Additional Member set aside the order dated 21.12.2011, passed in Land Ceiling Appeal No. 71 of 2003 by the Collector cum District Magistrate, Bokaro.

2. The factual background of the case as stated in the writ petition is that the land under Khata No. 188, Plot No. 2083 measuring area 15 decimals of village-Ranipokhar, PS Harla, District-Bokaro (hereinafter called the said land) was originally recorded in the name of the sons of Late Jhalu Mahto namely Chamu Mahto, Lakshaman Mahto, Mohari Mahto, Chhatu Mahto, Lalu Mahto and Devan Mahto. One of the recorded raiyats of Khata No. 188 namely Lalu Mahto died leaving behind two sons namely Balu Mahto and Bhadori Mahto. The respondent no. 4 purchased the said land from Moti Mahto s/o Late Ledo Mahto (father of the respondent no. 5) vide Registered Sale deed dated 10.06.2002 for consideration amount of Rs. 1,00,000/-. The petitioner came to know the transfer of the said land and then filed L.C Case No. 4 of 2001 before Land Reform Deputy Collector (respondent no. 3) against the respondent no. 4 under the provision of section 16(3)(1) of Bihar Land Reforms (fixation of Ceiling Area and Acquisition of Surplus land), Act 1961 (in short ''the Act, 1961'') claiming that he is the co-sharer of the vendor and holding land adjoining to the land transferred to respondent no. 5. The petitioner also deposited an amount of Rs. One Lakh equal to consideration amount together with 10% of the land value. The learned L.R.D.C Chas (respondent no. 3) dismissed the L.C. Case No. 4 of 2001 vide order dated 03.12.2002 on the ground that the land in question lies in urban area and as such no benefit under section 16(3)(1) of the Act, 1961 can be given to the petitioner. Aggrieved thereby, the petitioner preferred appeal being Miscellaneous (L.C) Appeal Case No. 71 of 2003 before the Collector cum District Magistrate, Bokaro (Respondent No 2) and the same was allowed vide order dated 21.12.2011, whereby the order of the respondent no. 3 was set aside. Thereafter, the respondent no. 4 filed Revenue Revision Case No. 5 of 2012 before the Member, Board of Revenue, Jharkhand at Ranchi (respondent no. 1) which was allowed on 31.07.2015 setting aside the order dated 21.12.2011 passed by the respondent No. 2 by holding that the appellate court without any material or documentary evidence available on record straightway concluded that O.P No. 1 is the co-sharer and the adjoining raiyat of the land in dispute in this matter.

3. The learned counsel appearing on behalf of the petitioner submits that the Board of Revenue has wrongly held that land in question is homestead. The Board of Revenue has failed to appreciate the basic principle of law that the land in question was agriculture Don 1 and II land. It is further submitted that neither the Board of Revenue in the impugned order nor the respondent no. 5 in her pleading controverted the fact that the petitioner is an adjacent raiyat of northern boundary of the land in question. The impugned order has been passed on mere presumption and erroneous ground. It is further submitted that the appeal of the petitioner was dismissed for default vide order dated 27.09.2005 and the restoration application was also rejected on 31.01.2006. Thereafter, the petitioner filed writ petition being W.P.C No. 161 of 2006 and by order dated 05.04.2006, the matter was remanded to the respondent no. 2.

4. The learned counsel appearing on behalf of the respondent-State submits that the impugned order passed by the Board of Revenue is legal, justified and in accordance with law and the petitioner is not entitled for any relief as prayed.

5. The learned counsel appearing on behalf of the private respondent no. 4 submits that she (Nuni Bala Devi) purchased the land v