JUDGMENT A.N. Varma, J. -These second appeals can be disposed of by a common judgment as the questions involved in each of these cases are identical. The appeals have been filed by a defendant in each of the six suits filed by the plaintiff-respondents against the defendant Zila Parishad for an injunction restraining the defendant appellant from realising licence fee in respect of the plaintiffs Bhattas. The suits were all dismissed by the trial court. The appeal filed by the plaintiffs, however, succeeded. Hence these second appeals by the defendant-Zila Parishad. 2. The undisputed facts in each of the six suits giving rise to these second appeals are that the plaintiffs are the owners of the brick-kilns (Bhattas) situate at different places within the local limits of the appellant Zila Parishad. The defendant Zila Parishad made bye-laws on 5th May, 1966 published in the U. P. Gazatte dated 14th May, 1966 imposing a licence fee of Rs. 10/- per chimney per Bhatta per annum. By a subsequent corrigendum dated 20th August, 1966 the said fee was raised to Rupees 100/- per annum. This bye-law purported to have been issued in exercise of powers vested in the Zila Parishad under Section 239 (a) (iv) of the U. P. Kshettra Samitis & Zilla Parishads Adhiniyam. The plaintiffs of each of the suits filed a suit challenging the vires of the imposition and the authority of the Zila Parishad to levy, assess and recover the said license fee on the ground that the Zila parishad was not rendering any service to the plaintiffs. There was no quid pro quo. The defendants demanded the licence fee from the plaintiffs and as the plaintiffs did not pay the same the defendants have launched prosecution against the plaintiffs. With these assertions the plaintiffs filed suit for the relief of injunction restraining the defendants-appellants from realising the licence fee and from proceeding with the prosecution launched by them. It was also asserted that having regard to the facts and circumstances of the case, notice under Section 257 of the aforesaid Act was not being given as the giving of notice by the plaintiffs would have defeated the object of the suits. 3. The defendant-appellants contested the suits on the ground that the suits were bad for want of notice under Section 257 of the aforesaid Act which was mandatory. 3. The defendant-appellants contested the suits on the ground that the suits were bad for want of notice under Section 257 of the aforesaid Act which was mandatory. The defence was that the imposition of the licence fee was valid. It also asserted that the Zila Parishad was rendering service and providing amenities to the inhabitants and public at large. It further asserted that it was spending the amounts realised by it as licence fee for the maintenance of public health, safety and convenience and that it was wrong to say that there was no quid pro quo between the licence fees and the services rendered by the Zila Parishad. It was denied that the income earned from the licence fee was being used for augmenting the general revenues of the Zila Parishad. 4. On the pleadings of the parties, various issues were framed by the trial court. It held that the plaintiffs having been required to give statutory notice which was mandatory under Section 257, the suit of the plaintiff-respondents was not maintainable. It also held that the imposition of the licence fee was valid and justified. The plaintiffs were rendering service, spending money over the maintenance of public health and safety, building and maintaining roads for the cars bringing bricks from various brick-kilns, and coal and other goods which are required for running of brick kilns. It also held that the licence fee had been validly imposed under a bye-law which was framed in accordance with the provisions of sub-section (4) of Section 239 of the aforesaid Act. It further held that the income from the licence fee was not being used as general revenues of the Zila Parishad. On these findings, the suits of the plaintiffs were dismissed. 5. Aggrieved by the decisions of the trial court, the plaintiffs filed appeals. The lower appellate court, disagreed with the trial court on both the principal points, namely, whether the imposition of the licence fee was valid and whether the suits were maintainable for want of notice under Section 257 of the aforesaid Act. In regard to the first question, namely, the validity of the licence fees the lower appellate court decided the case against the defendant-appellant on the ground that the defendant-appellant had not pleaded that it was rendering any service to the plaintiffs. In regard to the first question, namely, the validity of the licence fees the lower appellate court decided the case against the defendant-appellant on the ground that the defendant-appellant had not pleaded that it was rendering any service to the plaintiffs. According to the lower appellate court, the fact that the defendant-appellant may be rendering service to the public at large for the maintenance of its health and safety was not sufficient to sustain the validity of the fees. It rejected the entire evidence of the defendant-appellant adduced to show that it was rendering service to the brick-kilns themselves on the ground that, according to the appellate court, the defendant had pleaded in its written statement that it was rendering service only to the public at large and not to the brick-kilns. The lower appellate court refused to consider the evidence adduced by the defendant on that short ground. The lower appellate court also held that the defendant-appellant had not placed sufficient material before the court to show how total income received by the defendant appellant by way of licence fee was being disbursed. In this view of the matter, the lower appellate court held that the defendant-appellant had no legal authority to realise the licence fees from the plaintiffs. 6. On the second question, namely, whether the suit was bad for want of notice under Section 257 of the aforesaid Act, the lower appellate court has held that having regard to the facts and circumstances of the case notice under Section 257 was not necessary as that would have defeated the object of the suit. 7. Learned counsel for the appellant assailed both the findings of the lower appellate court. On the first point learned counsel placed reliance on a Division Bench decision of this court reported in Commr. of Agra Division v. Durgesh Prasad Bhargava (1974 All LJ 37) and contended that this decision is a direct authority on the controversy and it completely supports the contention of the appellants. Learned counsel for the respondents on the other hand submitted that a decision of the Supreme Court reported in Nagar Mahapalika, Varanasi v. Durga Dass Bhattacharya ( AIR 1968 SC 1119 ) is a decision which goes the whole length in favour of the plaintiff-respondents and that should follow the said decision and dismiss the appeals on the basis of the law laid down therein. 8. 8. Having heard the learned counsel for the parties, I am clearly of the view that these appeals are entitled to succeed on both the grounds. 9. I shall first take up the question about the validity of the imposition and levy of the licence fee in question. The only ground upon which the validity of the licence fee was challenged in these suits is that it being an impost in the nature of fees, according to the settled law it could be justified only if it can be demonstrated that the fees are being collected and utilised for some services rendered to those from whom the fees are being realised and, inasmuch as, the defendant Zila Parishad is not rendering any service to the plaintiffs, and the owners of the brick-kilns, the imposition must be held to be invalid. In the case of Commr. of Agra Division v. Durgesh Prasad Bhargava (supra) precisely this question came up for consideration before a Division Bench of this court. The Division Bench relying on various decisions of this court as well as of the Supreme Court came to the conclusion that the licence fee of Rs. 250 required under bye-law No. 8 framed by the Zila Parishad, Aligarh required to be paid by owners of brick-kilns for taking out a licence was not fee simpliciter, but was licence fee in the nature of tax which must be distinguished from the former. This Court held that where licence fee is imposed under a bye-law validly made for taking out a licence for running a brickkiln, the tests laid down for adjudging the validity of a fee namely the tests of quid pro quo have not to be applied for testing the validity of the licence fee. Relying on a decision of the Supreme Court reported in Corporation of Calcutta v. Liberty Cinema ( AIR 1965 SC 1107 ) where the above distinction was brought out and emphasised, the Division Bench came to the conclusion that the imposition of licence fee could not be assailed on the grounds on which a fee simpliciter is challenged. The Division Bench also took note of the decision cited by the learned counsel for the respondents, namely, the case of Nagar Mahapalika. Varanasi v. Durga Das Bhattacharya ( AIR 1968 SC 1119 ) (supra). 10. The Division Bench also took note of the decision cited by the learned counsel for the respondents, namely, the case of Nagar Mahapalika. Varanasi v. Durga Das Bhattacharya ( AIR 1968 SC 1119 ) (supra). 10. The decision of the Supreme Court in Corporation of Calcutta case (supra) was also considered by a Division Bench of this court in the case of State of TJ. P. v. Bharat Nath Seth (1973 All LJ 34). In this case also the distinction between the licence fee and fee as pointed out by the Supreme Court in Corporation of Calcutta's case was recognised and applied. 11. After the review of the various decisions, the Division Bench in the Commr. of Agras case (supra) observed as follows: "In our opinion the case is concluded by the later Supreme Court pronouncements reported in AIR 1965 SC 1107 and AIR 1970 SC 1114 and also in 1973 All LJ 34 where distinction has been drawn between 'Licence fee and 'fee. The licence fee mentioned in bye-law No, S is a 'licence fee and is payable by a person who volunteers to obtain a licence for running brickkiln with chimney. The respondent admittedly was running a brickkiln with chimney and in such circumstances before starting or running the brickkiln in the year 1966-67 he should have taken out a licence after payment of licence fee of Rs. 250/- as envisaged by bye-law No. 8. It was not a fee simpliciter as contemplated by the Supreme Court in the case reported in AIR 1954 SC 400 relied on by the learned single Judge." 12. The facts of the case of Commr. of Agra v. D. P. Bhargava (supra) are in pari materia with the facts of the present case. The controversy involved in that case was identical. The bye-law under which the licence fees in question were imposed and were sought to be recovered from the plaintiffs having been validly framed in accordance with Section 239 (E) (iv) of the U. P. Kshetra Samitis and Zila Parishads Adhiniyam, the levy of licence fee and its recovery from the plaintiffs could not legally be challenged on the ground that it did not pass the tests laid down for imposition of a fee simpliciter. 13. 13. Learned counsel for the respondents submitted that the provisions which their Lordships of the Supreme Court were considering in the case Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya were materially the same as those which are involved in the present case and that therefore, the law laid down in Nagar Mahapalika, Varanasis case should be followed in deciding this case. It is true that there are some observations in the case of Nagar Mahapalika Varanasi which do lend support to the contention of the learned counsel for the respondents. However, as the decision in the case of Commr. of Agra v. D. P. Bhargava (supra) was concerned with the exact provisions with which I am concerned in the present case and as the said decision had been rendered upon a consideration of the decision of the Supreme Court in the Corporation of Calcutta v. Liberty Cinema (supra) the ratio of which also directly covers the controversy at hand, I would prefer to follow the decisions of the Division Bench more so as the Division Bench itself had noticed and considered the effect of the decision of the Supreme Court in Nagar Mahapalika, Varanasi v. Durga Das Bhattacharya (supra) on the controversy. In the Corporation of Calcutta's case their Lordships of the Supreme Court have observed that whether the imposition is a tax or fee has to be decided on the basis of the provisions under which the tax is imposed, and, if the provisions do not provide for rendering of any special service to the individuals upon whom the tax is imposed, the impost cannot be regarded as a fee and not being a fee it ought to be treated as a tax. In the present case, also the bye-laws and the provisions of Section 239 (E) (iv) of the aforesaid Act themselves do not provide for any special service and consequently the dictum laid down by the Supreme Court in the case of Corporation of Calcutta v. Liberty Cinema is directly applicable to the present case, and, if may say so with respect, the ratio was rightly relied on by the Division Bench in the case of Commr. of Agra v. D. P. Bhargava. 14. of Agra v. D. P. Bhargava. 14. The upshot of the aforesaid discussion is that the impost in question is not fee simpliciter and consequently its vires could not be attacked on the mere ground that there was no quid pro quo between the licence fee charged and the services rendered. The decision of the lower appellate court declaring the imposition of licence fee by the defendants to be invalid is clearly contrary to law and is directly opposed to the view of this court in the case of Commr. of Agra (supra). 14A. Coming to the second point, learned counsel for the appellant has rightly urged that the plaintiff-respondents were bound to give a notice under Section 257 of the Act and the mere fact that the prosecution had been launched before the institution of the suit did not automatically relieve the plaintiffs of the obligation to comply with Section 257, Learned counsel contended that the only exception to the requirement of giving notice under Section 257 is where the very object of the suit would be totally frustrated by the giving of notice. Learned counsel placed reliance on the decisions of this Court reported in AIR 1952 All 711 (FB) and 1963 All LJ 688 in support of his contention that the suit of the plaintiff was incompetent. 15. Having heard learned counsel for the parties, I am clearly of the view that the lower appellate court has erred in law that under the circumstances of the present case, the plaintiffs were entitled to file the suit without complying with Section 257 of the aforesaid Act. Section 257 of the aforesaid Act reads as follows: - "257. 15. Having heard learned counsel for the parties, I am clearly of the view that the lower appellate court has erred in law that under the circumstances of the present case, the plaintiffs were entitled to file the suit without complying with Section 257 of the aforesaid Act. Section 257 of the aforesaid Act reads as follows: - "257. Suit against Parishad or Kshetra Samiti or its officers, etc.- (1) No suit shall be instituted against a Parishad or a Kshettra Samiti or against a member, officer or servant of a Parishad or a Kshettra Samiti, in respect of an act done or purporting to have been done in its or his official capacity until the expiration of two months next after notice in writing has been in the case of a Parishad or a Kshettra Samiti left at its office, and, in the case of a member officer, or servant, delivered to him or left at his office or place of abode, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed, and the name and place of abode of the intending plaintiff, and the plaint shall contain a statement that such notice has been delivered or left. (2) If the parishad or the Kshettra Samiti or the member, officer or servant has before action is commenced, tendered sufficient amends to the plaintiff, the plaintiff shall not recover any sum in excess of the amount so tendered and shall also pay all costs incurred by the defendant after such tender. (3) No action such as is described in sub-section (1) shall, unless it is an action for the recovery of immovable property or for a declaration of title thereof be commenced otherwise than within six months next after the accrual of the cause of action: Provided that nothing in subsection (1) shall be construed to apply to a suit wherein the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the commencement of the suit or proceeding." 16. Learned counsel for the defendant-appellant urged that the licence fees sought to be realised from the plaintiffs were only Rs. 100/- per brick kiln. The plaintiffs have not asserted that they were not in a position to pay this amount. They could, therefore, have easily paid the licence fee. Learned counsel for the defendant-appellant urged that the licence fees sought to be realised from the plaintiffs were only Rs. 100/- per brick kiln. The plaintiffs have not asserted that they were not in a position to pay this amount. They could, therefore, have easily paid the licence fee. The mere payment of licence fee would not have precluded them from challenging its validity. He further contended that the mere fact that the prosecution had been launched did not mean that the prosecution would have ended, however, within two months putting the plaintiffs into serious trouble or in a position which would have been beyond recoupment. 17. In the case of Municipal Board v. C. D. P. Srivastava (1963 All LJ 688) (supra) a Division Bench of this court considering the provisions of sub-sec. (4) of Section 326 of the U. P. Municipalities Act which are in pari materia with the proviso to the sub-sec. (3) of S. 257 of the U. P. Kshettra Samitis and Zila Parishads Act, held following the Full Bench decision of this court reported in AIR 1952 Ail 711 (supra), that sub-sec. (4) of Section 326 applies only to those cases where the loss which a plaintiff might suffer could not be compensated by damages or where the loss would be irreparable by the giving of notice. In this case, also, the plaintiffs had filed suits challenging the recovery of Circumstances and Property Tax imposed by the Municipal Board. The Division Bench held that subsection (4) of Section 326 of the U. P. Municipalities Act did not relieve the plaintiff of the obligation to give notice under Section 326 on the mere apprehension that distress warrant might be issued if they did not pay the tax. 18. I agree with the learned counsel for the appellant that the object of the suit would not have been defeated by the giving of the notice or by the postponement of the commencement of the suit for a period of two months. The prosecution had already been launched. The stage of threat of a prosecution being launched was already over. Once launched, the prosecution takes, it is common knowledge, considerable time in coming to a termination. The postponement of the suit by two months would, therefore, not have mattered at all. The prosecution had already been launched. The stage of threat of a prosecution being launched was already over. Once launched, the prosecution takes, it is common knowledge, considerable time in coming to a termination. The postponement of the suit by two months would, therefore, not have mattered at all. In any case the plaintiffs not having alleged that they did not have the means to pay the amounts demanded from them, they were bound to give a notice under Section 257 of the aforesaid Act. In my view, the object of the suit would not have been defeated had the plaintiffs given the requisite notice, that is. postponed the filing of the suit by two months. The view taken by the trial court was correct on this point. The lower appellate court has erred in holding otherwise. The appellant is entitled to succeed on this point also. 19. The result of the aforesaid discussion is that these appeals succeed and are allowed. The judgments and decrees of the lower appellate court in all the suits are set aside and those passed by the trial court are restored. The appellant would be entitled to its costs in each of these appeals.