By Express News Service

NEW DELHI: Hours before B S Yeddyurappa is scheduled to take oath as the Chief Minister of Karnataka, the Supreme Court declines to stay the swearing in ceremony on the petition filed by Congress and JD(S) challenging Karnataka Governor Vajubhai Vala's decision to invite the BJP to form the government in the southern state.

In the midnight hearing, a three judge bench of Justices AK Sikri, S A Bobde and Ashok Bhushan said, “Case will be heard later and formation of government will depend on court's final decision.”

The court will examine the support claimed by Yeddyurappa in his letter to Governor showing his status to form the government. The court will take up the case at 10:30 am on Friday.

The joint petition by the Congress and the Janata Dal (Secular) has sought a stay on the oath-taking ceremony, as communicated by the governor to the BJP's chief ministerial candidate B S Yeddyurappa.

In a midnight legal push, the Congress had approached the Supreme Court seeking an immediate intervention by the chief justice to stay the move, which it termed as an "encounter of the Constitution".

The Congress urged Chief Justice Dipak Misra to hold an urgent hearing tonight itself since Yeddyurappa is slated to take oath as chief minister at 9 am tomorrow.

Congress termed the governor's decision as "murder of democracy and trampling of Constitution".

The developments gather speed only after the Governor Vala invited Yeddyurappa to form the government and take oath as chief minister. He also asked Yeddyurappa to seek a vote of confidence within 15 days of assuming office.

The petition contended that despite presenting the list of 116 MLAs, governor Vajubhai Vala has invited the BJP which has 104 MLAs to form the government and has given a relatively longer time of 15 days to prove the majority on the floor of the House.

On the other hand, the Congress and JD(S), which have already announced post-poll tie-up, have won 78 and 37 seats respectively and claimed before Vala to have numbers to form government in the state.

During the over three hour hearing, Singhvi says Governor completely dispensed with constitutional norm.

Former Attorney General Mukul Rohatgi, appearing for two BJP MLA’s says no injunction can be issued to the Governor on what decision he takes on inviting a party to form government.

Opposing Rohatgi, Singhvi told the bench that, “Governor has no option, no discretion must invite party/coalition with largest number of supporting MLAs capable of forming the government.”

Singhvi says, “The Governor's decision cannot be whimsical. There are innumerable instances where post poll alliances have been invited to form government.”

On this, Rohatgi said, “In Yakub Memon, I argued from 2 am to 5 am because the man was going to hanged at 6 am Here, what is the urgency? Whether B SYeddyurappa should be given 10 days or 15 days can be decided in a couple of days. It never had to be decided at a pre-dawn hearing. It wasn't a case of hanging. Besides, Congress can't cite Goa case since it never staked a claim there.”

Singhvi says Court has power to defer swearing-in, so that the Court can go through the letter of Yeddyurappa.