ORDER The petitioner is the owner of a Bed Ford Truck bearing Police Registration No. WBL 9317. He himself is the driver of the said vehicle. The said vehicle is used as a Carrier. The case of the petitioner is that he was not able to maintain the said truck because of poor financial condition, he surrendered all the papers relating to the said truck with the Registering Authority, the Public Vehicles Department, Calcutta on 7th May 1980. The permit of the said vehicle was valid upto 14th November, 1983. The Public Vehicles Department, Calcutta issued a certificate on 7th May 1980 wherein it has been stated that the Tax token, Certificate of Registration and R T A receipt had been surrendered to the said authority. The said vehicle was kept in the garage of one Brindaban Sharma, at Hatpukur Memari for repair since 6th August 1980 till 16th day of May 1985. The vehicle was never used as it was in a damaged condition. On 17th May 1985 while the petitioner was taking the empty vehicle on trial after repair on the road by the side of the said garage, the Motor Vehicles Inspector seized the vehicle and asked for papers which the petitioner already surrendered to the Registration Authority. The said Inspector kept the vehicle in Memari Police Station. Thereafter on 20th May 1985 started a case under Ss. 112, 113A, 123, 125 of the Motor Vehicles Act and S. 18(2) of Bengal Motor Vehicles Tax Act for violation of the provisions contained in Ss. 3, 5, 38, 42, 46 and 94 of the Motor Vehicles Act in the court of the learned Judicial Magistrate at Burdwan. In the petition of complaint it was prayed that the vehicle may not be released until the tax and penalty are realized. The petitioner was enlarged on bail of Rs. 800/- on 3rd June 1985 by the learned S.D.J.M. Burdwan. 2. After the said seizure of the vehicle on 17th May 1985 a Demand Notice was issued by the Taxing Officer on 18th May 1985 demanding a sum of Rs. 25,665/- under S. 16(1) of the Motor Vehicles Tax Act. 3. In this application the petitioner has challenged the Demand Notice asking for tax and for release of the vehicle in question. 4. Mr. 25,665/- under S. 16(1) of the Motor Vehicles Tax Act. 3. In this application the petitioner has challenged the Demand Notice asking for tax and for release of the vehicle in question. 4. Mr. Chakraborty appearing for the petitioner has submitted that the respondents have initiated proceedings mala fide and the vehicle could not hive been seized at all. He has also submitted that proceedings initiated by the respondents should be quashed by this Court inasmuch as the complaint does not disclose any offence at all. According to him admittedly documents relating to the vehicle were surrendered long time ago and the imposition of the tax and penalty it wholly without jurisdiction. It is his contention that the vehicle should be released to the petitioner. 5. Mr. Pal learned Advocate appearing for the State respondents has submitted that the documents were surrendered no doubt, but since the petitioner was found plying the vehicle without the tax token, the vehicle was validly seized and the proceeding has been initiated. In that view of the matter the Court should not interfere at this state. He has admitted that the tax and penalty had been imposed without hearing the petitioner. 6. I have considered the rival contentions. Admittedly the petitioner surrendered the tax taken and the certificate of registration of the vehicle in question. The note appended to Rule 24 of the West Bengal Motor Vehicles Tax Rules, 1957 provides that surrendered of tax token and certificate of registration of a vehicle on or about the date on which it goes off the road in absence of any evidence of contrary, be regarded by the Taxing Officer as satisfactory proof that the vehicle was not used during the period. Accordingly it is for the Tax Officer to prove by the evidence that the petitioner used the vehicle after the tax token and certificate of registration were surrendered. In this case immediately on the day following the seizure of the vehicle the Taxing Officer issued the Demand Notice imposing the tax and penalty. This imposition is wholly without jurisdiction. Firstly before such imposition was made, the petitioner was not given any opportunity of hearing. Secondly, all the documents relating to the vehicle were surrendered in 1980 before the appropriate authority. This imposition is wholly without jurisdiction. Firstly before such imposition was made, the petitioner was not given any opportunity of hearing. Secondly, all the documents relating to the vehicle were surrendered in 1980 before the appropriate authority. There was no material before the Tax Officer to hold that the said vehicle was used without payment of tax and if so for a particular period during 1980 till the vehicle was seized on 17th May, 1985. It is for the Taxing Officer to prove by cogent evidence that the petitioner used the vehicle during the impugned period or any part thereof. Even the provisions of S. 16 of the West Bengal Motor Vehicles Tax Act, 1979 have not been complied with in the instant case. Section 16(3) of the said Act provides as follows:–– "Notwithstanding anything contained elsewhere in this Act, any officer referred to in sub s. (1) may seize and detain in such manner at may be prescribed, any motor vehicle in respect of which tax is due until the person liable to pay the tax,–– (a) his satisfied the Tax Officer having jurisdiction within thirty days of the detention that the tax has actually been paid (b) has within thirty days of such detention paid to the Taxing Officer having jurisdiction the tax due together with the penalty to be paid for non-payment of tax within the prescribed time." 7. The seizure took place on 17th May 1985 and on 18th May 1985 demand was raised. The Taxing Officer before issuing the Demand Notice has to be satisfied that the tax is payable in respect of the vehicle. Having regard to the fact that the tax token and the certificate of registration have been surrendered long ago to the appropriate authority and having regard to the facts and circumstances of this case this application is disposed of by the following order: (a) The Demand Notice dated 18th May, 1985 is set aside; (b) The respondents shall determine afresh on evidence whether the petitioner is liable to pay any tax or penalty under the Motor Vehicle Tax Act, 1979. Such determination shall be made within two months from the date of communication of the order. The respondents shall hear the petitioner and allow the petitioner to adduce evidence before the Taxing Officer to meet the case of the respondents. Such determination shall be made within two months from the date of communication of the order. The respondents shall hear the petitioner and allow the petitioner to adduce evidence before the Taxing Officer to meet the case of the respondents. The respondents shall disclose the materials which they intend to rely in support of their case, before asking the petitioner to adduce evidence. After considering all the relevant materials and evidence the concerned respondent shall pass a speaking order and if the petitioner is aggrieved he will be at liberty to move the appropriate forum. (c) Since according to the petitioner the vehicle had not been used from 1980 nor the petitioner has expressed any intention to use the vehicle the vehicle shall be kept in a garage to be provided by the petitioner at Memari so long as the proceedings are not finally terminated. The petitioner undertakes to this court not to take out the vehicle even on trial run until the proceedings are terminated. It is stated that the vehicle is kept in an open space in Memari Police Station since 17th May 1985 causing damage to the vehicle. The respondents are therefore directed to forthwith allow the petitioner to remove the vehicle from the said Police Station to the garage to be provided by the petitioner at Memari. (d) The learned Judicial Magistrate shall dispose of the pending proceedings as expeditiously as possible but preferably within three month from date. There will be no order as to cost. Let a plain copy of the order countersigned by the Assistant Registrar (Court) be handed over to the petitioner. Demand notice set aside; direction given.