Patna High Court's Division Bench sets aside the order by Justice Sandeep Kuma

In The State of Bihar through the Principal Secretary, Registration Excise and Prohibition Dept. (Registration) vs. Mrs. Nitu Kumari (2025), Patna High Court's Division Bench of Acting Chief Justice Ashutosh Kumar and Justice Partha Sarthy set aside the order passed by Justice Sandeep Kumar, the Single Judge dated January 29, 2024 passed in Mrs. Nitu Kumari vs. The State of Bihar &Ors. (2024). 

Justice Sandeep Kumar's order reads:The Appellate Authority has dismissed the appeal of the petitioner because of non-deposit of the 50 percent of disputed amount. In the interest of justice, this application is allowed and it is directed that the appellate authority will hear the appeal on merits after the petitioner deposits 10 percent of the disputed amount. For the next two months, no coercive steps shall be taken against the petitioner." 

Setting aside the order by Justice Sandeep Kumar, the judgement of the Division Bench observed:"The learned Single Judge, on noticing that the appeal preferred by the respondent was dismissed by the Appellate Authority only on the ground of non-deposit of 50 percent of the disputed amount, directed the Appellate Authority to hear the appeal, subject to the respondent depositing 10 percent of the disputed amount." 

The order of Justice Sandeep Kumar was challenged before the Division Bench on the sole ground that it is in teeth of the mandatory requirement under Section 47(A)(6) of the Indian Stamp Act, 1899 which provides for a prerequisite in the form of a statutory deposit of the 50 percent of the amount payable as deficit stamp duty, chargeable on the market value of the property as determined by the Collector.

The Division Bench observed: "The very usage of the word ‘shall’ in the statute makes the intention of the legislature very clear and the same has to be followed and complied with, leaving no discretion in the authority to waive the same. On this very ground, the judgment passed by the learned Single Judge dated 29th of January, 2024 passed in CWJC No. 17380 of 2023 is set aside. However, we direct that in case the respondent deposits 50 percent of the disputed amount, the Appellate Authority, ignoring the delay in preferring the appeal, shall entertain the appeal and decide the same within a reasonable period of time." 

A bare perusal of the Indian Stamp Act, 1899 (2025 edition) reveals that Section 47(A)(6) has been inserted by the Bihar legislature in the Act through Bihar Finance Act, 2008. The provision reads:"Before filling an appeal under sub-section (4), the aggrieved party shall deposit 50% (fifty percent) amount of the payable deficient Stamp duty chargeable on the market value of the property as determined by the Collector."

Notably, insertion of Section 47 A through Bihar (Amendment) 1988 and it's amendment by Bihar (Amendment) Act 1991 was held constitutionally valid in Umesh Thakur vs. The State of Bihar (1994) (1) PLJR 727. 

Notably, Group of (G77) and China countries use "shall" to indicate mandatory actions or requirements that are expected of all parties, particularly in international agreements or commitments. For example, in the context of climate finance, the G77 might state that "Developed countries shall provide financial support to developing countries to meet their climate mitigation and adaptation needs".