The Shiv Sena on Tuesday moved the Supreme Court challenging the Maharashtra governor’s decision not to grant three days to submit a letter of support for government formation but failed to get an urgent hearing.

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

A lawyer representing the Shiv Sena told PTI that the apex court registry said it was “not possible to constitute a bench today (Tuesday)”.

“The Supreme Court has asked us to mention at 10.30am on Wednesday the writ petition that we filed before the court today,” 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 was being readied. “The decision on when to file it (fresh petition) will be taken tomorrow (Wednesday),” he said.

The Shiv Sena has sought a directive 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 the petition, filed through advocate Fernandes, the party claimed that 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 relief 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 to the petitioner to demonstrate that it has the requisite majority to form the government in the state,” according to the plea.

In the petition, the Sena contended that the governor’s decision violated Articles 14 and 21 of the Constitution.

“It is ex-facie (on the face of it) arbitrary, unreasonable, capricious and mala fide exercise of power in order to ensure that the Shiv Sena is precluded from getting a fair and reasonable opportunity of proving majority on the floor of the House,” the petition 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 the government was unconstitutional.

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 the government and direct it to prove its majority on the floor of the House,” the petition said.

It claimed that there was ample constitutional convention to show that the next largest party had 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 the 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 bagged 54 seats and the Congress 44.

In the petition, the Shiv Sena has made the Union home ministry, the Maharashtra government and the NCP respondents. “It is submitted that the factum of majority cannot be decided by the governor in his own ipse dixit (assertion without proof) and the floor of the House is the only ‘constitutionally ordained forum’ to test the majority,” the plea said.

The petition said that according to constitutional conventions and practices, the governor was 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 the government, it said.