This application under Article 226 of the Constitution of India has been filed against the order dated 13.6.94 passed by the learned Chairman, Assam Board of Revenue in Appeal Case No.l35E (T) of 1993. That order is at page 33 and the same is quoted below : "File called from the office. Now I find that the 3rd Member has asked for hearing which power does not strictly follow from section 3 (6). This power is vested with the Full Bench. This case is necessarily to be heard by the Full Bench in view of the changed circumstances. Fix 24.6.94 for hearing by the Full Bench, consisting of self/Shri Barua/Shri Barkataki." 2. Earlier on 26.1.94 this appeal was heard by a Division Bench of the Assam Board of Revenue and the judgment was reserved. On 16.5.94 the Chairman passed the following order: "Since the view of the two members consisting the Bench differ, the case is referred to the third member Shri BN Barkataki under section 3 (6) of the Assam Board of Revenue Act, 1962." 3. The order dated 23.5.94 and the order dated 10.6.94 passed by the third Member are quoted below : "23.5.94 : Seen the order consisting third Member Bench dated 16.5.94 by the Chairman, Assam Board of Revenue, Guwahati under section 3 (6) of the Assam Board of Revenue Act. Issue notice on the parties concerned. Fix 10.6.94 for hearing. 10.6.94 : Learned counsel for both the parties are present. They are allowed to obtain photostat copy of these two judgments already in this file as prayed for. Hearing adjourned till 22.6.94." 4. Section 3(6) of the Assam Board of Revenue Act, 1962 reads as follows : "If there be any difference of opinion between the Members constituting a two Member Bench in disposing of a case, the matter shall be placed before the Chairman who may, in his discretion, either refer the matter to the third member or refer it to the Full Board for hearing and finally disposing of the matter.” 5.
Regulation 26 (2) (b) of the Assam Board of Revenue Regulation, I of 1963 reads as follows : "If there be any difference of opinion between the Members of a Division Bench the matter shall be placed before the Chairman who may, in his discretion, either refer the matter to the third Member or to the Full Bench for hearing and finally disposing of the matter." 6. A bare reading of the section as well as Regulation quoted above will show that the Chairman in his discretion may either refer the matter to the third Member or refer it to the Full Court for hearing and finally disposing of the matter. 7. In the instant case, the matter was referred to the third Member by the Chairman as it will be evident from the orders quoted above. After exercise of that discretion the Chairman cannot revise it or modify it on his own accord and that also behind the back of the parties. The Chairman has the discretion either to refer the matter to the third Member or to the Full Bench for hearing. But once this power is exercised, the Chairman cannot revise or modify the same. That will introduce uncertainty in the field of dispensation of justice and will erode the confidence of the people in the judiciary. 8. In that view of the matter, the order dated 13.6.94 passed by the Chairman, Assam Board of Revenue in Appeal Case No. 135E (T) of 1993 stands quashed. The matter shall go to the third Member and he shall hear the matter in accordance with law. As it is an excise matter, it is expected that the Member shall dispose of the matter as early as possible. The writ application is accordingly allowed. 9. I have heard Shri AK Phukan, learned counsel for the petitioner and Shri KC Das, learned counsel for respondents 3 and 4.