New Delhi, Oct. 13: In a development that has again put a question mark over the Bihar Assembly polls, the Supreme Court has listed a petition seeking to cancel the elections for hearing.

The petition is likely to be heard before the first vote is cast on October 18 subject to the directives of Chief Justice R.C. Lahoti.

Supreme Court counsel Viplav Sharma, a petitioner before the five-judge Constitution bench that recently held the dissolution of the Assembly ?unconstitutional?, today moved the apex court again with a fresh petition seeking cancellation of the elections. He argued that once the dissolution has been declared ?unconstitutional, the Assembly thereby has automatically been revived and no fresh election for constituting another new Assembly is warranted?.

The five-judge Constitution bench headed by Justice Y.K. Sabharwal had held that the dissolution was wrong but said due to the ?peculiar facts and circumstances? of the case a ?status quo ante restoring? the dissolved Assembly was not necessary.

Sharma stated in his petition that in the S.R. Bommai case, a nine-judge bench had decided that once an action of dissolution was found ?unconstitutional?, fresh elections should be stopped.

Sharma also contended in the petition that the judges had queried ?what would happen if the dissolution were struck down?. To this, attorney-general Milon Banerjee and additional solicitor-general Gopal Subramanian replied by stating that ?in that eventuality?, fresh polls would be ?automatically? annulled notwithstanding the ?formal notification of the Election Commission?.

The logical extension of this, according to Sharma ?is that the dissolved Assembly gets revived?.

Sharma said the order of the Constitution bench was ?in two parts? ? one holding the dissolution unconstitutional and the other ?not to order status quo ante restoring the Assembly? as it stood on March 7, when President?s rule was imposed in the state and the Assembly kept in suspended animation.

?This means the dissolution has been set aside and President?s rule has not been interfered with,? Sharma said, adding that the order of the five-judge bench does not mean that ?fresh elections? should be conducted. ?This is the natural corollary of the order,? the counsel said.

The petition moved during the puja vacation of the court is likely to be heard before the first phase of elections on October 18.

According to Sharma, the Supreme Court had held only the dissolution of the Assembly ?unconstitutional? and not the earlier proclamation of the President keeping the House in animated suspension. ?Hence, the state Assembly is still in existence in the suspended animation form? and ?the Supreme Court order could not be interpreted to mean that fresh elections to constitute another new Assembly could go on?.

Since the already elected House has been in existence, the poll panel cannot issue notifications to conduct fresh elections and constitute yet another Assembly, the counsel said. A puja vacation bench can hear the petition before polling starts.