Court No. - 39
Case :- WRIT - A No. - 17851 of 2018 Petitioner :- Lauhar Respondent :- Union Of India And 2 Others Counsel for Petitioner :- Vinod Kumar Tiwari,Brahma Deo Tiwari,Krishna Kumar Singh Counsel for Respondent :- Vikash Chandra Tripathi
Hon'ble B. Amit Sthalekar,J. Hon'ble Jayant Banerji,J.
Heard Sri S.K. Upadhyay holding brief of Sri B.D. Tiwari, learned counsel for the petitioner and Sri Triloki Singh holding brief of Sri V.C. Tripathi, learned counsel for the respondents-Railways Administration.
The petitioner in the writ petition is seeking quashing of the order of the Central Administrative Tribunal dated 8.3.2018 passed in O.A. no. 330/01458/2013 whereby the original application has been dismissed.
Briefly stated, the case of the petitioner is that he was adopted by late Triveni, who was working on the post of Mason in North Eastern Railway, Gorakhpur Division, through a registered adoption deed dated 23.10.2000. Triveni died on 30.10.2000. The two nephews of late Triveni also laid a claim but the claim of the petitioner was considered on the ground that there was an adoption deed in his favour made by Triveni. When no action was taken by the respondents, the petitioner filed the instant original application. In the counter reply, which was filed by the Railways Administration before the Tribunal, it was pointed out that earlier also the petitioner had filed another O.A. No. 42 of 2004 seeking quashing of the orders dated 19.6.2003/21.6.2003 whereby his request for appointment on compassionate ground had been rejected. That O.A. no.
42 of 2004 was dismissed in default by the Tribunal by order dated 02.01.2008. The order dated 02.01.2008 has also been quoted in paragraph 10 of the writ petition.
The Tribunal has recorded a finding that without filing any restoration application or recall application for recall of the order dated 02.01.2008, the second original application for the same relief was not maintainable and the contention of the petitioner that he had no knowledge of the order dated 02.01.2008 dismissing the original application in default was not acceptable. The second ground on which the Tribunal has rejected the original application is that in the adoption deed neither the date of the actual adoption was mentioned nor the age of the petitioner whether he was below the age of 15 was disclosed inasmuch as a child above the age of 15 could not have been adopted; neither it was disclosed whether the natural mother and father of the petitioner were alive on the date of execution of the adoption deed nor it was disclosed whether the adoptive mother was alive on the date of adoption and whether her consent for adoption was there or not and the only witness to the adoption deed was late Triveni and one of his other brothers. The Tribunal further held that such an adoption deed was an illegal deed and could not be treated to be a valid adoption. A finding of fact has also been recorded that as per the documents furnished by the respondents Railways Administration, the petitioner was more than 17 years of age at the time of execution of the adoption deed and according to the provision of Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956, a child above the age of 15 years could not have been given in adoption. On the third count, the Tribunal held that even if it is for a moment assumed that the petitioner had no knowledge of the order dated 02.01.2008 dismissing his earlier original application no. 42 of 2004, the cause of action accrued to him in the year 2008 and therefore, there was no justification for filing the present original application in 2013 after lapse of 5 years without explaining the delay. Therefore, on these three counts, the Tribunal has dismissed the second original application.
Having gone through the order of the Tribunal and the findings of fact recorded, we find that once the petitioner's O.A. no. 42 of 2004 had been dismissed for want of prosecution, the second O.A. no. 330/01458/2013 filed was not maintainable after a lapse of 5 years as it was grossly barred by time and had rightly been dismissed by the Tribunal. Secondly, the Tribunal has held that on the date of adoption, the petitioner was 17 years of age and a child above the age of 15 years could not have been given in adoption in view of the provisions of Section 10(iv) of the Hindu Adoption and Maintenance Act, 1956. Besides in the adoption deed, it was not mentioned whether the natural mother of the petitioner was alive or whether the wife of the adoptive father was alive. In an adoption deed, the natural parents as well as the adoptive parents are required to be a signatory. Even the consent of the adoptive parents is necessary. Therefore, in the absence of such disclosures, the Tribunal had rightly discarded the adoption deed filed by the petitioner.
We, therefore, do not find any illegality or infirmity in the findings recorded by the Tribunal in the order dated 8.3.2018.
The writ petition lacks merit and accordingly stands dismissed.
Order Date :- 23.8.2018 nd