@JUDGMENTTAG-ORDER
Pendse, J.@mdashThis 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 trustees of the Shraddhanand Anathalaya.
3. The petition was accepted by the learned single Judge of this court and the intimation of filing of the petition the intimation of filing of the petition
was given to the Indian Council of Social Welfare, Bomaby, as required by the Rules of this Court. The petition was made returnable on October
12, 1983. The learned Judge after hearing the counsel for the petitioner and the representatives of the Indian Council of Social Welfare and on
perusing the petition, came to the conclusion that it is advisable to grant the petition, and accordingly, passed an order in exercise of the powers
passed an order in exercise of the powers u/s 7 of the Guardians and Wards Act, appointing the petitioner as the guardian of the female minor
Alisha. The learned Judge also granted leave to the petitioner to remove the said minor from the jurisdiction of this Court. The learned Judge signed
the order on October 12, 1983 on certain undertakings given by the petitioner.
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 u/s 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 contravention of the provisions of the Trusts Act. The proceedings are resisted by the Trustees and the hearing is adjourned from time
to time. The proceedings 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 number 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 vested in this Court and the Charity
Commissioner need not have made any such observations in respect of matters over which he 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:
In this behalf, Mr. Sadavarte, Advocate for the Respondents, submitted that he on behalf of the Respondents gives an undertaking to this
Authority at the Bar that from today no child or woman from the Anathalaya shall be given in adoption or handed over to anybody without placing
all the facts in this behalf before this Authority and getting its approval for the same pending this inquiry whether or not there is any order of other
Authority of approval of the adoption including that of High Court. Similar statement has been made by the President of the institution Smt.
Sumatidevi Dhanwate as well as respondent No. 1 Superintendent of the Anthalaya"".
The Joint charity Commissioner in view of the undertaking given by the Advocate on behalf of the Trustees, felt that it was not necessary to pass
any interim order.
6. Shri Kapoor, learned counsel appearing for the petitioner and also representing the Shradhanand Anathalaya, seriously complained by the Joint
Charity Commissioner and given by the Advocate for the Trustees in a proceeding u/s 41-A of the Bombay Public Trusts Act. Shri Kapoor
complains that the Advocate for the Trustees had no authority to given an undertaking that the minor inmates of the Anathalaya would not be
handed over to the guardian appointed by the High Court. Shri Kapoor complains, and in my judgment with considerable merit, that the
jurisdiction to appoint guardian and hand over custody of the minor rests absolutely in the High Court under the provisions of the Guardians and
Wards Act, and no authority subordinate to the High Court can secure any undertaking from any person to defeat the jurisdiction of the High
Court. Shri Kapoor is perfectly right in his submission that once the High Court passes an order in exercise of the powers u/s 7 of the Guardians
and Wards Act, then that order must operate forthwith and cannot be made subject to confirmation of any authority subordinate to the High Court,
and obviously the Joint Charity Commissioner cannot sit over the order passed by the High Court. In my judgment, Shri Sadavarte, Advocate
appearing for the Trustees before the Joint Charity Commissioner, has over-stepped his authority in giving such an undertaking which would defeat
the orders passed by this Court, and the joint Charity Commissioner was wholly in error in accepting such an undertaking.
7. Apart from the consideration that the Joint Charity Commissioner had overlooked the fact that he is subordinate to the High Court and cannot
prevent operation of the orders of the High Court by securing such an undertaking from the parties before him, he has also committed an error in
securing such an undertaking in exercise of his jurisdiction u/s 41-A of the Public Trusts Act Section
Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any
person connected therewith to ensure that the trust is properly administered and the income thereof is properly accounted for or duly appropriated
and applied to the objects and for the purposes of the trust ; and the Charity Commissioner may also give directions to the trustees or such person
if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of.
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 u/s 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.
9. Shri Kapoor informs me that in view of the undertaking given on behalf of the Trustees, Shraddhanand Anathalaya is required to file applications
before the Joint Charity Commissioner for approval after this Court passes an order u/s 7 of the Guardians and run could be taken custody of by
the guardians and removed from the country only after the Joint Charity Commissioner gives his approval. In one of the matters the Joint Charity
Commissioner has not yet given his approval in spite of repeated requests. IN my judgment, the course adopted by the Joint Charity
Commissioner is wholly illegal and contrary to the well settled principles of hierarchy of judicial forums. IN these circumstances ... requesting that
the Trustees of the Anathalaya should be relieved of the under taking given on their behalf by their Advocate Shri Sadavarte before the Joint
Charity Commissioner, Nagpur on April, 16, 1983 in Application No. 6 of 1982 filed u/s 41-A of the Bombay Public Trusts Act.
10. Accordingly, the Trustees of Shraddhanand Anathalaya are relieved of the undertaking given on their behalf by their Advocate and it is made
clear that the authorities of the Shraddhanand Anathalaya are not required to secure any approval of the Joint Charity Commissioner, Nagpur or
any other authority after an order is passed by this Court u/s 7 of the Guardians and wards Act, 1890.
11. Ordered accordingly.