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A vacation bench of Justices Indira Banerjee and JK Maheshwari said the plea will be listed before an appropriate bench.
Senior advocate Devadatt Kamat, appearing for Shiv Sena leader Subhash Desai, said they are seeking a listing of the fresh plea along with other pending petitions which are coming up for hearing on July 11.
Desai has challenged the Governor’s June 30 decision to invite a coalition of the Shinde faction and the BJP to form government in Maharashtra.
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The plea also sought direction to call for records of all pending disqualification petitions filed against Shinde and other rebel MLAs pending before the speaker/Deputy speaker.
Earlier also several petitions have been filed by the Thackeray-led faction on various issues related to the Maharashtra political crisis, which are coming up for hearing on July 11.
Rebellion by a section of Sena MLAs, led by Shinde, had resulted in the collapse of the Maha Vikas Aghadi (MVA) government.
In his plea drawn by advocate Rajesh Inamdar and filed by advocate Anish Shah, Desai said, “The Petitioner is…challenging, the completely ex facie arbitrary, unconstitutional and illegal action of the Governor dated June 30, 2022, inviting Respondent No. 4 (Eknath Shinde) to be the Chief Minister of Maharashtra and the further illegal proceedings of the Maharashtra Legislative Assembly held on July 3 and July 4”.
The plea said that the June 30 action of the Governor in calling Shinde to be the Chief Minister is completely arbitrary and unconstitutional. “Shiv Sena is a regional political party recognized by the Election Commission. Its office bearers have also been recognized by the Election Commission. The president of Shiv Sena is Shri Uddhav Thackeray. The last organizational elections were held in 2018 and the same was intimated to the Election Commission of India.
There is no change to the organizational structure of the Shiv Sena and the leadership of Shri Uddhav Thackeray is undisputed and unchallenged”, the plea said. It sought direction to quash the decision dated June 30 of the governor to invite Eknath Shinde to take oath as the chief minister of Maharashtra and form the government. It also sought direction to quash the illegal proceedings of the Maharashtra legislative assembly held on July 3 and the consequent election of the speaker.
It said that in the 14th Legislative Assembly of Maharashtra Shiv Sena had 55 MLAs as of June 1, 2022, and the post-poll alliance was formed between the Shiv Sena, NCP, and Indian National Congress.
“On and around June 21, 2022, the Respondent MLAs (rebel MLAs) belonging to Shiv Sena under the purported leadership of Respondent No. 4 [Eknath Shinde] in concert with the BJP had sought to topple the Shiv Sena Government headed by Uddhav Thackeray”, it said.
The plea further said that it is an admitted position that these rebel MLAs had parked themselves from June 21, 2022, in BJP-ruled states and had given unequivocal statements that the Shiv Sena Government headed by Uddhav Thackeray had lost the majority.
“It is also an admitted fact in the public domain that Respondent No. 4 along with Respondent No. 5 (Devendra Fadnavis) had met the Governor and staked claim to form the Government relying upon the support of 39 MLAs of the Shiv Sena. The Governor thereafter on June 30, 2022, called upon Respondent No. 4 to be the Chief Minister” it said. The plea said that the seminal question which arises for consideration of the court is under which capacity the Governor recognized the strength of 39 rebel MLAs headed by Eknath Shinde to invite him to be the Chief Minister.
“Admittedly, in the facts of the present case, there is no merger as envisaged under para 4 of the Tenth Schedule. These rebel MLAs have not merged in any other political party or formed a new political party, therefore even if it is assumed they formed 2/3rd strength of the Legislature party, Para 4 of the Tenth Schedule is not at all attracted”, it said. Desai said that the President of the Shiv Sena (Uddhav Thackeray) had publicly and admittedly not aligned/supported the BJP and in these circumstances, the satisfaction of the Governor for the purpose of calling upon Eknath Shinde to be the Chief Minister as the head of 39 rebel MLAs of Shiv Sena (which is not endorsed by the Shiv Sena Political Party) is by itself ex facie unconstitutional.
“The Constitution prohibits recognition of rebel MLAs of a political party under Tenth Schedule, and the action of the Governor legitimizes what is expressly prohibited by the Constitution. The Governor has sought to recognize what the Constitution prohibits. The Governor is also not empowered under law to recognize “Who is the Shiv Sena”? That is the domain of the Election Commission”, the plea said. It added that the Governor cannot recognize the rebel MLAs and political parties as that would ring a death knell on the working of multi-party democracy.