JUDGMENT
1. While a revision petition of the petitioner was pending before the Joint Commissioner of Commercial Taxes (Administration), Purnea (respondent No. 3), he came to this Court and this Court by an order dated September 1, 2004 as contained in annexure 7 directed him to dispose of the revision application and thereafter the impugned order as contained in annexure 9 has been passed. The respondent No. 3 has disposed of the revision application by saying that he has no power to entertain the application filed under Section 46(4) of the Bihar Finance Act, 1981. Section 46(4) of the Act reads as follows :
(4)(a). The Commissioner may, on his own motion call for and examine the records of any proceeding in which any order has been passed by any other authority appointed under Section 9, for the purpose of satisfying himself as to the legality or propriety of such order and may after examining the record and making or causing to be made such enquiry as he may deem necessary, pass such order as he thinks proper.
(b) The Commissioner may also revise any order passed by any authority appointed under Section 9 on application seeking revision of such order :
Provided that where an application is filed seeking revision of any order, such an application shall be entertained only if made within ninety days of the date of communication of the order sought to be revised :
Provided further that where the Commissioner is satisfied that the applicant had sufficient cause for not applying within time, he may condone the delay.
2. Suo motu power is vested in the authority to see the legality and propriety of the order, which the authority can either do on his own instance or if any illegality or impropriety is brought to his notice by any person including the person aggrieved. The power to have the matter suo motu verified in the authority is not taken away only on the ground that illegality has been brought to his notice by a person. It is different matter whether he will examine the matter or not on merit which he has to decide on the basis of materials available before him. Thus, the very ground given by the authority is non est. in the eye of law.
3. Accordingly, the impugned order is set aside and the matter is remitted to the respondent No. 3 to consider the question afresh. It is made clear that this Court is not saying anything as to whether the respondent No. 3 will exercise his jurisdiction or not. It is for him to consider but he cannot, as stated above, refuse to exercise the power only on the ground that the petitioner has filed a petition bringing to his knowledge the infirmity in an order passed by a lower authority.
4. In the result, the application is allowed.