Shiv Sena moves SC against governor's refusal to give more time, declined urgent hearing

The petition is likely to come up before the apex court on Wednesday morning.

The lawyer representing the Shiv Sena told PTI that the apex court registry has informed that it is "not possible to constitute a bench today".

"The Supreme Court has asked us to mention the writ petition that we filed at 10.30 AM on Wednesday before the court," Advocate Sunil Fernandes, who filed the petition on behalf of the Shiv Sena, told PTI.

He said the fresh/second petition challenging the imposition of President's rule in the state is being readied.

"The decision on when to file it (fresh petition) will be taken tomorrow," he said.

The Shiv Sena has sought a direction from the apex court to quash the Governor's  decision, taken on Monday, of not giving it the opportunity to prove majority on the floor of the House.

In a petition, filed through advocate Fernandes, the party claimed it was invited to form the government on Monday and had indicated its willingness to do so on Tuesday.

The governor's decision is unconstitutional, discriminatory, unreasonable, capricious and mala fide, the party said in the plea, adding that "the governor can't act in a manner to only suit the majority political party" at the Centre or act on the central government's "diktats".

"The petitioners are constrained to move the writ petition under Article 32 of the Constitution seeking urgent reliefs against the arbitrary and mala fide actions of the Maharashtra governor who in hot haste has on November 11 refused to grant even three days time to the petitioner to demonstrate that it has the requisite majority to form government in the state," according to the plea.

In the petition, the Sena contended that the governor's decision was violative of articles 14 and 21 of the Constitution.

"It is ex facie arbitrary, unreasonable, capricious and mala fide exercise of power in order to ensure that Shiv Sena is precluded from getting a fair and reasonable opportunity of proving majority on the floor of the House," it said.

The plea said the governor's decision rejecting the claim of the Shiv Sena, which is the second largest party with 56 MLAs, to form government is "ex facie arbitrary, unconstitutional and violative of article 14".

The Shiv Sena was invited to form the state government on November 10 and the petitioner had indicated its willingness to form the government on November 11, it said “The governor, as per the law, ought to have invited the petitioner to form government and direct it to prove its majority on the floor of the House," as per the petition.

It claimed that there was ample constitutional convention to show that the next largest party has been invited to form the government and to demonstrate its strength on the House floor.

"The petitioners are given to understand that the NCP and the Congress, herein, are principally willingly to support the petitioners in forming government in Maharashtra,” the plea said.

In the 288-member Maharashtra assembly, the BJP emerged as the single largest party but fell short of the majority of 145 by 40 seats.

The Shiv Sena, which was a BJP ally, garnered 56 seats. While the NCP had 54 seats and Congress had 44.

In the petition, the Shiv Sena has made the ministry of home affairs, the Maharashtra government and the Sharad Pawar-led NCP as respondents.

“It is submitted that the factum of majority cannot be decided by the governor in his own ipse dixit and the floor of the House is the only ‘constitutionally ordained forum' to the test majority,” it said.

The petition said as per constitutional conventions and practices, the governor is duty-bound to allow reasonable time for political parties to conclude their negotiation on government formation and not act as an "agent or mouthpiece of the central government".

The governor has to allow reasonable time to political outfits to present the conclusion of their negotiations before taking a decision to reject any claim to form government, it said.

The Union Cabinet on Tuesday recommended President's rule in Maharashtra even as top leaders from the NCP, Congress and Shiv Sena held a flurry of consultations in a bid to tot up the numbers and resolve the impasse over government formation in the state since the assembly polls last month.