1. This matter is placed before me for directions in view of unusual circumstances, which would be set out hereinafter.
2. The petitioner - Joseph Eleouet, a national of France, of France, has filed this petition in this Court on September 8, 1983, under the provisions of the Guardians and Wards Act, 1890, for his appointment as guardian for the person of a female minor by name Alisha. The minor was an inmate of Shraddhanand Anathalaya, which is a public Trust registered under the Bombay Public Trusts Act, 1950. The relief sought by the petitioner was supported by the rustees of the Sharddanand Anathalaya.
4. In spite of the order passed by this Court, the petitioner is unable to take custody of the minor child and to carry the said child with him to France, the place of residence of the petitioner. The petitioner is prevented from taking advantage of the order of this Court in view of certain proceedings adopted under Section 41-A of the Bombay Public Trusts Act, 1950 before the Joint Charity Commissioner, Nagpur, and it is now necessary to advert to those proceedings.
5. One Smt. Pushpa w/o Shashikumar Pradhan has instituted Application No. 6 of 1982 before the Joint Charity Commissioner, Nagpur under Sec. 41-A of the Bombay Public Trusts Act, 1950, against the Trustees of the Shraddhanand Anathalaya, and the Superintendent of the said Anathalaya. The applicant had made several allegations against the Trustees about Trust, failure to account for the funds and has sought certain directions from the Joint Charity Commissioner as regards the finances and accounts of the Trust. In the application, and allegation is made that the Trustees are indulging in giving the minor inmates of the Trust in adoption to the foreigners and that is in contravgention of the provisions of the Trusts Act. The proceedings are resisted by the Trustees and the hearing is adjourned from time to time. The proceedidngs came up before the Joint Charity Commissioner on April 16, 1983 and it appears from the order passed by the Joint Charity Commissioner that he was not merely impressed but was carried away by certain adverse reports appearing in the newspapers about the Trust giving its minor inmates in adoption to the foreigners. The order passed by the Joint Charity Commissioner indicates that the Joint Charity Commissioner posed a question as to whether in each and every case of adoption the governing body is required to consider the case and approve the adoption. The Deputy Charity Commissioner made numbner of observations about how, in his judgment the adoption should be carried out, but it is not necessary to make any reference to those observations because the jurisdiction to appoint guardian is vgested in this Cpourt and the Charity Commissioner need not have made any such observations in respect of matters over which nhe had no jurisdiction. Be that as it may, what has created problem for the institution is an undertaking given by the Advocate for the Anathalaya and recorded by the Joint Charity Commissioner in paragraph 11 of the order. The relevant portion reads as under:
8. A mere perusal of the Section makes it crystal clear that the Charity Commissioner can give direction to the Trust or to the Trustees if he finds that the property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold etc. It hardly requires to be stated that the inmates of the Shraddhanand Anathalaya cannot to treated as the property of the Trust. Surely, the Charity Commissioner should have exercised more care before giving directions in pursuance of the undertaking given by the Advocate for the trustees and preventing the operation of the orders passed by this Court. The High Court has exercised the powers under Section 7 of the Guardians and Wards Act for the benefit of the minor inmates of Shradhanand Anathalaya and the Advocate for the Trustees by giving an undertaking and the Joint Charity Commissioner by accepting the same has defeated the order of the High Court, which was passed for the benefit of the minor.