The Supreme Court on Wednesday refused a plea by Uddhav Thackeray's group to stay the Election Commission's February 17 order recognising Eknath Shinde's faction as real Shiv Sena and allotting it 'bow and arrow' symbol.
The top court, however, issued notice to the Shinde group on a plea by rival faction challenging the order passed by the poll panel.
A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala rejected repeated pleas by Thackeray group led by senior advocates Kapil Sibal, A M Singhvi, Devadatt Kamat and advocate Amit Anand Tiwari to stay the order as Shinde group had started to take over the party offices and may take control of the bank accounts too.
The counsel also said it may create a law and order problem.
"They have succeeded before the EC. We can't stay the order at this stage," the bench said.
The court, however, allowed Thackeray group to continue retain the name of Shiv Sena (Uddhav Balasaheb Thackeray) with flaming torch symbol till further orders.
Thackeray group also submitted before the court that since Shinde group has been recognised as Shiv Sena, it may start disqualification proceedings against them.
To this, Shinde group led by senior advocates Neeraj Kishan Kaul, Mahesh Jethmalani and Maninder Singh said they would precipitate any such action.
The court asked Shinde's group to file a response to the petition filed by Thackeray's group within two weeks. It allowed filing of rejoinder a week thereafter.
During the arguments, Sibal contended that the EC had relied upon the majority in legislative wing to declare Shinde group as real Shiv Sena, while disregarding the majority in organisational wing.
Kaul raised the question on maintainability of the plea, saying the petitioners have twice approached the Delhi High Court on the issue and denied any relief, so the top court should not directly hear their plea against the EC's order.
Thackeray, in the plea filed through advocate Amit Anand Tiwari, said the EC has failed to appreciate that petitioner enjoys overwhelming support in the rank and file of the party and in the Pratinidhi Sabha, the apex representative body of the primary members and other stakeholders of the party.
"The Petitioner enjoys the support of 160 members out of approximately 200 odd members in the Pratinidhi Sabha,” it said.
“The EC disregarded the party Constitution of 2018 on the ground that it was undemocratic and that it was not communicated to it. These observations are totally erroneous as the amendments in the Constitution were categorically communicated in 2018 itself and the petitioner will place clear evidence in this regard,” the plea said, seeking interim stay on the EC order.
The plea also contended that the test of legislative majority adopted by the EC could not have been applied at all in view of the fact that the disqualification proceedings were pending against the legislators supporting Shinde.
“If the legislators are held to be disqualified, there is no question of them then forming a majority. Thus, the basis of the impugned order itself is constitutionally suspect,” it said.
The plea also said that EC has erred in holding that there is a split in the political party as the only averment was made with regard to the split in legislative party.