JUDGMENT :

A.M. Bujor Barua, J.

Heard Ms. D Ghosh, learned counsel for the petitioner. Also heard Ms. L Devi, learned counsel for the respondents no. 1 and 4 being the authorities under the Union of India and NRC respectively, Ms. A Verma, learned counsel for the respondents no. 2, 5, 7 and 8 being the authorities under the Home Department of the Government of Assam, Mr. AI Ali, learned counsel for the respondent no. 3 being the authorities under the Election Commission of India and Ms. K Phukan, learned counsel for the respondent no. 6 being the Deputy Commissioner, Dhubri.

2. The petitioner Labiran Nessa @ Abiran Nessa had been referred to the Foreigners’ Tribunal No. 6, Dhubri for rendering an opinion as to whether she is a person who entered the State of Assam on or after 25.03.1971, resulting registration of case No. FT. 6th DBB/50/2019. The Tribunal rendered an opinion dated 03.04.2021 declaring the petitioner to be a foreigner.

3. Being aggrieved this writ petition is instituted.

4. In the writ proceeding the petitioner relies on the voters’ list of 1966 of village Mayarchar Part II in the Bilasipara Sub-Division of Dhubri district which contains the name of Haran Mondal, S/O Korbor Ali at Sl. No. 20 and that of Golejan Nessa Bibi, W/O Haran Mondal at Sl. No. 21 where both of them are residing in the same house No. 12. The petitioner claims to be the daughter of Haran Mondal of 1966 voters’ list of village Mayarchar Part II. To substantiate that she is the daughter of Haran Mondal of village Mayarchar Part II, reliance is placed on a Kabin Nama available in page-90 of the writ petition which shows the name of the bride to be Abiran Nessa daughter of Haran of village Mayarchar. The Kabin Nama had been exhibited before the Tribunal through the DW7 namely Montaz Ali, who is stated to be a part time LDA cum officer bearer in the office of the Kazi. The Kabin Nama itself bears a number 23 No. (A) 1986 meaning thereby that it is a Kabin Nama that must have been registered in the year 1986.

5. It is noticed that the summons was issued by the Tribunal to the Marriage Registrar cum Quazi but the Quazi deemed it appropriate to depute a part time LDA cum office bearer in his office for rendering the evidence. The power of delegation of a witness summoned by a Court or Tribunal is not available under the law and neither the law of delegation is applicable in such circumstance. If the summon is issued to a given particular person it is that particular person alone who can depose as a witness and not a person who is delegated by a person who is summoned.

6. From such point of view, the evidence of DW7 Montaz Ali who is stated to be a part time LDA cum office bearer in the office of Quazi and had been delegated by the Quazi to depose before the Tribunal cannot be accepted under the law.

7. Ms. D Ghosh, learned counsel for the petitioner states that these proceedees have a very poor financial background and it is difficult for them to again bear the cost of the witness to come and depose before the Tribunal. We appreciate such stand being taken that requiring a witness to come and depose before the Tribunal and to bear the cost is also a financial burden on the proceedees.

8. It is stated that the proceedee had paid a cost of Rs.4000/-(Four Thousand) to the office of the Marriage Registrar cum Quazi at Doraimari for appearing before the Tribunal on two dates inasmuch as the Tribunal Member was absent on the first date. The payment of cost is sought to be justified by referring to Section 35, Order 16 Rule 2 of the CPC which provides that the party applying for a summons shall, before the summons is granted and within a period to be fixed which shall not be later than seven days from the date of making application under Rule 1 (4) of Order 16 pay into Court such sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to atten