JUDGMENT : V. B. Mayani, J. The petitioner, by way of filing present petition under Article 226 of the Constitution of India, has prayed as under: "(A) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other writ order of direction quashing and setting aside the order dated 05.3.2019 in the interest of justice; (B) Your Lordships may be pleased to issue a writ of mandamus or writ in the nature of mandamus by directing the respondents, their employees, attorneys, agents and servants and mainly respondents no.2 and 3 to produce on record the procedure followed after dated 01.03.2019 including bringing on record the method and manner in which the impugned order was passed; (C) Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to stay further implementation, operation and execution of the impugned order dated 5.3.2019 and further be pleased to restrain respondents and mainly respondent no.1 not to initiate any steps in connection with impugned order dated 05.03.2019; (D) Any other further relief/s that may be deemed fit may also kindly be granted. 2. After filing the petition, draft amendment was sought, for prayers, which was granted and new prayers were added as under: "(BB) Your Lordships may be pleased to issue a writ of mandamus or in nature of mandamus declaring the action of respondent No.1 to announce by-election for Talala Constituency on 10.3.2019 treating it to be vacant as unconstitutional, arbitrary and violative of Article 14 of the Constitution of India; (CC) Pending admission hearing and final disposal of this petition, Your Lordships may be pleased to stay the by-elections declared for Talala Constituency vide Notification dated 10.03.2019;" 3. The present Special Civil Application is mainly preferred by the petitioner as the petitioner is disqualified as MLA from the Talala constituency and seat has been declared vacant on the basis of conviction of petitioner by order of learned JMFC, Sutrapada for the offence under Section 379 of the Indian Penal Code and sentenced to undergo imprisonment for 2 years and 9 months as well as fine of Rs.2500/. 4. Learned Senior counsel Mr. Anshin Desai, for the petitioner, has mainly argued that the petitioner is elected as MLA from Talala constituency since 2017, who win over by vote of 30,000. 4. Learned Senior counsel Mr. Anshin Desai, for the petitioner, has mainly argued that the petitioner is elected as MLA from Talala constituency since 2017, who win over by vote of 30,000. There was case pending before learned JMFC, Sutrapada being Criminal Case No. 133 of 2012, which has resulted into conviction of petitioner for the offence under Section 379 of IPC and the Court has imposed sentence of imprisonment for 2 years and 9 months as well as fine of Rs.2500/- on 1st March, 2019, which was Friday. At the same time, the sentence was less then 3 years and petitioner was on bail, therefore, the petitioner preferred bail application before the same Court under Section 389 (3) of Cr.P.C to enlarge him on bail as well as to suspend the sentence. By order on the same day, learned JMFC, Sutrapada, postponed the sentence and released the petitioner on bail on personal bond of Rs.10,000/- and surety of like amount. The order was passed under Exh. 268. Thereafter, the petitioner has preferred an Appeal before the learned Sessions Court, Gir-Somnath District Court at Veraval being Criminal Appeal No. 4 of 2019, which was instituted on 5th March, 2019. At the same time, the petitioner has filed two applications being Exh. 3 and Exh. 4 to stay the conviction and release him on bail, which was fixed for hearing. Thereafter, on 7th March, 2019, by an order of the learned Sessions Judge below Exh. 3 and 4, the conviction is stayed and petitioner is ordered to be released on bail. The order of stay of conviction and release on bail passed by learned Sessions Judge, Veraval is communicated to Hon'ble Speaker as well as Election Commission by way of E-mail on 8th March, 2019. Thereafter, in the meantime, on 5th March, 2019, the Hon'ble Speaker has ordered regarding disqualification of the petitioner, as there is a conviction and also regarding vacancy of seat of present petitioner. Afterwards on 10th March, 2019, the Election Commission declared by-election for Talala constituency. He has also submitted that disqualification is as per Article 191 of the Constitution of India, and it is required that it is to be declared by Hon'ble Governor as per Article 192 after obtaining the opinion of Election Commission. Afterwards on 10th March, 2019, the Election Commission declared by-election for Talala constituency. He has also submitted that disqualification is as per Article 191 of the Constitution of India, and it is required that it is to be declared by Hon'ble Governor as per Article 192 after obtaining the opinion of Election Commission. But here in the present case, the Hon'ble Speaker has ordered for the disqualification and vacancy of seat of petitioner, which is without the jurisdiction of Hon'ble Speaker. He has also submitted that there is hurry in declaring the disqualification as well as by-election. He has also submitted that there are other 2 incidents, in which, there were conviction but there was no hurry for the declaration of disqualification as well as declaration of vacancy. Moreover, it is also submitted that as per decision in case of Election Commission of India Vs. Bajrang Bahadur Singh & Ors, (2015) 12 SCC 570 , as mentioned in para-66, there should be 4 weeks time to approach the appropriate Court and another 4 weeks time for decision of the concerned Court and therefore, there should be 8 weeks time to declare vacancy. Learned Senior Counsel Shri Desai has also submitted that there was a stay against the conviction passed by learned Sessions Court, Veraval on 7th March, 2019, which was communicated to Hon'ble Speaker as well as Election Commission on 8th March, 2019 and said stay against conviction was in existence till 15th March, 2019, even though the Election Commission has declared by-election on 10th March, 2019. He has also submitted that as per judgment of Lok Prahari, through its General Secretary S.N. Shukla Vs. Election Commission of India & Ors, 2018 SCCOnline(SC) 1664, the Hon'ble Supreme Court has held that when there is a stay against conviction, then, conviction will not operate and therefore, steps taken by Election Commission is against order of stay of conviction which is granted by Sessions Court on 7th March, 2019. Learned Senior Counsel for the petitioner has relied upon decisions in case of Bajrang Bahadur (supra) and Lok Prahari, (Supra). 5. Learned Advocate General Shri Kamal B Trivedi has mainly submitted that by way of present petition, the petitioner has challenged the order of Hon'ble Speaker dated 5th March, 2019 as well as declaration of by-election declared by Election Commission on 10th March, 2019. 5. Learned Advocate General Shri Kamal B Trivedi has mainly submitted that by way of present petition, the petitioner has challenged the order of Hon'ble Speaker dated 5th March, 2019 as well as declaration of by-election declared by Election Commission on 10th March, 2019. He has also submitted that after obtaining of the stay against conviction by the petitioner, the State has preferred Special Criminal Application No. 2904 of 2019, which is decided on 15th March, 2019 and by way of order of this Court, the order of stay of conviction by the learned Sessions Judge was quashed and set aside and therefore, at present there is no stay or suspension against the conviction or sentence or execution of sentence. It is also submitted by learned Advocate General that petitioner has challenged the order of Hon'ble Speaker regarding declaration of disqualification as well as declaration regarding vacancy of seat but this is not the order of Hon'ble Speaker but it is just a notification and notification is as per written direction of the Election Commission after the judgment of Hon'ble Apex Court in case of Lily Thomas Vs. Union of India & Ors, (2013) 7 SCC 653 . He has also submitted that it is instructed by Election Commission that as soon as there is conviction of any MLA, then, it is required to be notified and communicated to Election Commission as soon as possible and latest within 7 days. In this regard, the communication sent by Election Commission to State, has been produced by learned Advocate General. He has also submitted that there is difference in disqualification as per Sections 8, 9, 9A, 10A, 11 etc of Representation of Peoples Act, 1951 (hereinafter referred to as 'R.P. Act' for short). He has also submitted that when there is dispute regarding disqualification, then, it is required to refer to Hon'ble Governor and after receiving opinion of Election Commission, the Governor will decide the issue regarding disqualification of MLA but same is not applicable in case of conviction of MLA. He has also submitted that when there is dispute regarding disqualification, then, it is required to refer to Hon'ble Governor and after receiving opinion of Election Commission, the Governor will decide the issue regarding disqualification of MLA but same is not applicable in case of conviction of MLA. He has submitted that the conviction itself is a disqualification and therefore, there is no role of Hon'ble Speaker or Hon'ble Governor to declare the MLA disqualified, otherwise, the situation will be there that the order of Court, whether it may be order of learned JMFC, is scrutinized, examined and decided by Hon'ble Speaker or Hon'ble Governor, but this is not the law and Hon'ble Speaker or Hon'ble Governor cannot sit as an appellate Court. In this regard, whenever there is conviction of MLA itself, automatically occurs disqualification of MLA. Therefore, there is no question regarding the order of Hon'ble Speaker, regarding disqualification and declaration of vacancy by way of notification dated 5th March, 2019. Therefore, this is not an order but notification, which is required as per the letter of Election Commission or it may be considered as a communication towards Election Commission. Learned Advocate General has drawn attention of this Court towards Articles 173 (C), 191(E), 192, 193 as well as Section 8 including Section 8(3) of R.P. Act. He has submitted that on the moment when MLA is convicted, on the very moment he became disqualified and therefore, there is no need or requirement to declare him disqualified by Hon'ble Speaker or Hon'ble Governor. Here in the present case, the concerned MLA is sentenced to undergo imprisonment for 2 years and 9 months, which is more than 2 years and therefore, as per Section 8(3) of R.P. Act, the petitioner became disqualified automatically and in this regard he has drawn attention of the Court towards judgment of Hon'ble Supreme Court decided in the cases of Bajrang Bahadur (supra), Lily Thomas (supra) & K. Prabhakaran Vs. P. Jayarajan, (2005) 1 SCC 754 , etc. He has also submitted that there is difference between stay against execution of sentence and stay against sentence itself. He has also submitted that disqualification cannot be stopped unless and until there is a stay against the conviction. The stay against execution of sentence and stay against sentence will not be enough. P. Jayarajan, (2005) 1 SCC 754 , etc. He has also submitted that there is difference between stay against execution of sentence and stay against sentence itself. He has also submitted that disqualification cannot be stopped unless and until there is a stay against the conviction. The stay against execution of sentence and stay against sentence will not be enough. He has also submitted that the notification dated 5th March, 2019 issued by Hon'ble Speaker is not in hurry or hasty step but it is as per direction of Election Commission that in case of conviction of MLA, the Election Commission should be informed immediately. He has also submitted that the order of learned JMFC, Sutrapada is against the sentence regarding suspension of sentence and not stay against the conviction and therefore, when Hon'ble Speaker has notified the disqualification on 5th March, 2019, there was no stay against conviction of the petitioner. 6. Learned Senior Counsel Shri Mihir Joshi appearing for respondent Nos. 1 and 2 - Election Commission, has mainly submitted that Election Commission has declared by-election on 10th March, 2019 for Talala Constituency, as the constituency is declared vacant and also notified by Hon'ble Speaker by notification dated 5th March, 2019. He has also submitted that whether a stay against conviction which is granted by learned Sessions Judge on 7th March, 2019, which is communicated on 8th March, 2019, will operate in which manner is not required to be decided by Election Commission but it may be decided by the Hon'ble Speaker or Hon'ble Governor. There is no role of Election Commission regarding decision whether the conviction is in existence or not or whether stay has been granted against the conviction or not or what is the effect of stay against the conviction. He has also submitted that Hon'ble Speaker has notified the vacancy of seat and as per the direction of Election Commission of India, the Election of Lok Sabha as well as the election of State Assembly or by-election on casual vacancy shall be conducted simultaneously as far as possible. He has also submitted that now the Lok Sabha Election has been declared for the year 2019 and therefore the by-election by way of casual vacancy is required to be conducted simultaneously. He has also submitted that now the Lok Sabha Election has been declared for the year 2019 and therefore the by-election by way of casual vacancy is required to be conducted simultaneously. He has also submitted that not only the Talala constituency but total 37 by-election in India will be held simultaneously, which also include the Talala constituency. He has also submitted that not only that, but there are 3 other incidents i.e. Dhrangadhra, Manavadar and Jamnagar of Gujarat State, where by-elections will also be held simultaneously with Lok Sabha election. Therefore, there is no hurry or hasty step for immediate declaration of by-election. Moreover, learned Senior counsel Shri Joshi has drawn attention of this Court to para-35 of decision of Hon'ble Apex Court in case of Bajrang Bahadur (supra) and stated that as per judgment of Hon'ble Supreme Court, when there is a disqualification of any MLA, then, there is automatic and immediate vacancy as mentioned in the decision. Moreover, he has mentioned that as per Article 190(3), whenever, there is a disqualification, then, there is vacancy and when there is vacancy, then, immediate by-election, as per direction of Election Commission, simultaneously with Election of Lok Sabha, 2019. Moreover, he has submitted that in the above mentioned paragraph, in above mentioned citation, it is also held that when there is a disqualification, there is vacancy and afterwards, the disqualification is withdrawn, then also, the concerned Member will not place on the same vacancy but he has to be elected in the new election. He has also drawn attention of the Court to the judgment of Hon'ble Supreme Court delivered in case of Bajrang Bahadur (supra) as well as Lilly Thomas (supra). 7. It is submitted that learned counsels appearing for respondent Nos. 1, 2 and 3 that as per decision in case of Bajrang Bahadur (supra), it relates with Section 9(A) of R.P. Act and 8 week period is granted by the Hon'ble Apex Court in case of decision of Hon'ble Governor but here in the present case, there is no decision of Hon'ble Governor but disqualification occurs due to event of conviction of petitioner by the concerned Court and therefore, 8 weeks time will not be available in the present case. 8. We have considered the petition, documents, submissions of all the parties and facts and circumstances. The following particulars are revealed which are not in dispute. 8. We have considered the petition, documents, submissions of all the parties and facts and circumstances. The following particulars are revealed which are not in dispute. (i) The petitioner is convicted for the offence under Section 379 of Indian Penal Code by learned JMFC, Sutrapada on 1st March, 2019 and sentenced for imprisonment of 2 years and 9 months and fine of Rs.2500/-. (ii) On the same day, he has tendered bail application under Section 389 (3) of Code of Criminal Procedure to release him on bail and learned JMFC has suspended the sentence and release the petitioner on bail on personal bond to the tune of Rs.10,000/- as well as surety of like amount. (iii) Afterwards on 5th March, 2019, the petitioner has challenged the order of learned JMFC, Sutrapada by way of an Appeal No. 4 of 2019. Along with said Appeal, two application being Exh. 3 and 4 for stay of conviction and release him on bail, were filed, which was kept for hearing. (iv) On 7th March, 2019, applications below Exh. 3 and 4 were granted by learned Sessions Court, Veraval and stayed the conviction and release the petitioner on bail. (v) After the stay of conviction on 7th March, 2019, on 8th March, 2019, the petitioner has communicated said order of stay of conviction to Hon'ble Speaker as well as Election Commission by way of E-mail. (vi) In the meantime, on 5th March, 2019, the Hon'ble Speaker has notified the petitioner as disqualified and also notified the seat as vacant. (vii) On 10th March, 2019, the Election Commission has declared by-election on vacant seat of petitioner along with Lok Sabha Election, 2019 to be conducted simultaneously. (viii) On 15th March, 2019, this Hon'ble High Court has quashed and set aside the order passed by learned Sessions Court dated 7th March, 2019 below Exh. 3 and 4 against stay of conviction and releasing the petitioner on bail. (ix) Now at this movement, the stay granted by learned Sessions Court against conviction and releasing the petitioner on bail vide order dated 7th March, 2019 below Exh. 3 and 4, are quashed and set aside by this Court and therefore, at present, at this movement, there is a conviction and sentence of 2 years and 9 months as well as fine of Rs.2500/- is in existence and there is no stay against conviction. 3 and 4, are quashed and set aside by this Court and therefore, at present, at this movement, there is a conviction and sentence of 2 years and 9 months as well as fine of Rs.2500/- is in existence and there is no stay against conviction. (x)As per decision in case of Lok Prahari (supra), if there is stay against the conviction, then, the conviction will not operate but here in the present case at present, there is no stay against conviction and therefore, the question of non-operating of conviction does not arise and thereby no question regarding obstruction against disqualification of petitioner as well as vacancy. 9. In view of above mentioned situation prevailing at this movement that conviction is in existence and there is no stay against conviction, then, the disqualification and vacancy remains the same and therefore, at this stage it appears that without going into other questions and submissions of learned counsels for the parties, we propose to dispose of this matter by keeping all the other issues open and not interfere with the notification dated 10th March, 2019 made by Election Commission only on the count that the conviction has not been stayed and therefore, disqualification remains and this judgment may not be treated as an opinion on the other aspects, as the Court has expressly kept all the questions open. 10. In the result, the petition is dismissed. Notice discharged.