Mudholkar, J. - (1.) The petitioner is an advocate of this High Court. The respondent No. 1 is the Union of India, and respondent No. 2 is the Bar Council of this High Court. Upon the Petition made by the petitioner under Art. 226 of the Constitution, Mr. Justice K. K. Desai issued a rule on 4-11-1958 against the respondents to show cause why the provisions of sub-s. (3) of S. 4 of the Indian Bar Councils Act (Act XXXVIII of 1926) and also all the resolutions and rules made thereunder or in conformity therewith should not be declared illegal and ultra vires of the Constitution, and further why an appropriate writ or order or direction should not issue against the respondents or any of them restraining them from holding any elections on the basis of the reservation of seats as contemplated by sub-s. (3) of S. 4.
(2.) It is common knowledge that as a step towards establishing an autonomous bar, the Indian Bar Councils Act was enacted in the year 1926, and Bar Councils were established for certain High Courts including this High Court. The composition of the Bar Councils is dealt with by S. 4 of the Act, which runs thus: "4 (1) Every Bar Council shall consist of fifteen members, of whom- (a) one shall be the Advocate-General; (b) four shall be persons nominated by the High Court, of whom not more than two may be Judges of that court; and (c) ten shall be elected by the advocates of the High Court from amongst their number. (2) Of the elected members of every Bar Council not less than five shall be persons who have for not less than ten years been entitled as of right to practise in the High Court for which the Bar council has been constituted. (3) Of the elected members of the Bar Councils to be constituted for the High Courts of Judicature at Fort William in Bengal and at Bombay such proportion as the High Court may direct in each case shall be persons who have, for such minimum period as the High Court may determine, been entitled to practise in the High Court in the exercise of its original jurisdiction, and such number as may be fixed by the High Court out of the said proportion shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland." Then follows sub-s. (4) whch deals with a matter with which we are not concerned. We do not, therefore, reproduce it. In pursuance of the provisions of sub-s. (3) of S. 4, this High Court passed the following resolution on 25-9-1928." "It is hereby resolved that of the ten elected members of the Bar Council to be constituted for the High Court of Judicature At Bombay, one half shall be persons who have, for the minimum period of ten years, been entitled to practise in the High Court in the exercise of its original jurisdiction, and four, out of the said one half, shall be barristers of England or Ireland or members of the Faculty of Advocates in Scotland." This resolution was amended on 3-4-1944 by reducting the number of barristers from 4 to 3 and increasing the number of advocates on the Original Side from 1 to 2. A further alteration in the number of representattives of persons entitled to practise in this High court was made on 10-4-52, as a result of which the reservation of seats for persons practising on the Original Side has been reduced from 5 to 4, and that for barristers from 3 to 2. Reading the resolution along with the provisions of S. 4, the composition of the Bar Council for this High Court now is (a) Advocate General (b) four persons nominated by the High Court, (c) 10 persons elected by the advocates of whom 4 will be persons entitled to practise on the Original Side of the High Court and out of these 4, 2 will be barristers of England or Ireland or members of the Faculty of Advocates in Scotland.
(3.) In pursuance of the rules framed under the Act, elections for filling five seats were ordered to be held on 12-12-1958. The petitioner, who had offered himself as a candidate at those elections, therefore, had sought in addition to the relief or declaration concerning the validity of sub-section (3) of S. 4 and the rules ab initio made thereunder, an interim injunction restraining the Bar Council from holding any elections as then notified. The injunction was refused, and elections have taken place.;