JUDGMENT K. B. Asthana, J. - In this special appeal Imperial Tobacco Company Limited of Saharanpur (hereinafter called The Company) is the appellant and the Municipal Board, Saharanpur (hereinafter called The Board) is the respondent. It arises out of a writ petition filed under Art. 226 of the Constitution of India by the Board as a petitioner, questioning the validity of an appellate order passed by the District Magistrate of Saharanpur under Sec. 160 of the U. P. Municipalities Act (hereinafter called The Act) by which the levy of the water-tax on all the buildings belonging to the Company as one unit was set aside except for three bungalows which were found to fall within the radius of 600 feet of the nearest water-stand-pipe fixed by the Board. 2. It appears that by a notification of the Municipal Department of Government of Uttar Pradesh dated 12th September, 1958 the Board was authorised to assess water-tax on those residential buildings which fell within a radius of six hundred feet of the nearest water-stand-pipe under Sec. 129(a) of the Act. On 13-8-1959, the Executive Officer of the Board intimated the Company that as a result of installation of a public stand post all factory buildings of the Company situated in Khalasi Line, bearing within a radius of six hundred feet from the said post came within taxable area with effect from the month of May, 1959 for the purpose of imposition of water-tax. The Company by its letter dated 20th August, 1959 enquired from the Executive Officer of the Board as to which of the residential buildings came within the taxable area. The Board persisted that as the Company was the owner of the complex, consisting of the factory buildings, stores, godowns, dispensary and residential houses etc. enclosed in one closed compound as a unit fell within the taxable area and served upon Company the Water-tax bill. By its letter dated 19th December, 1959 the Company protested and intimated that the bill was incorrectly made out, pointing out, that the buildings were not in a common compound and the residential bungalows be treated as separate unit in the same way as they were being treated for house-tax assessment. It demanded an amended bill separately for those buildings that fell within six hundred feet from the water-stand-pipe. It demanded an amended bill separately for those buildings that fell within six hundred feet from the water-stand-pipe. The Executive Officer of the Board by his letter dated 29th December, 1959 informed the Company that in view of explanations (a) and (b) of Sec. 129 of the Act, all buildings and the common compounds were assessable to water-tax and, therefore, the bill had been correctly worked out, and asked the Company to deposit the tax. It appears that the Company deposited the tax in dispute under protest and filed an appeal to the District Magistrate. Saharanpur, under Sec. 160 of the Act. The District Magistrate under the appellate order dated 7th April, 1960 held that the whole plot of land containing a number of factory buildings, and residential buildings could not legally be treated as one unit for the purpose of water-tax. He found that only a part of three bungalows fell within six hundred feet of the water-stand pipe and water-tax could only be assessed on those bungalows under Sec. 129 (a) of the Act. Being aggrieved, the Board filed a writ petition in the High Court and challenged the order of the District Magistrate, mainly on the substantial ground that the District Magistrate has failed to appreciate the correct import and scope of Sec. 129 of the Act which specifically provided that "buildings" included the compound, and where there were several buildings in a common compound, all such buildings and the common compound. In a counter-affidavit the Company, inter alia, said that the factory buildings of the Company were distinct arid separate, being enclosed by high walls from the residential area which were situate outside the factory and that residential areas were comprised of separate and distinct compounds containing the residential premises used as residences by the officers of the Company. It was denied that the factory area and the residential area consisted of a single combined area surrounded by a common compound wall. It was denied that the factory area and the residential area consisted of a single combined area surrounded by a common compound wall. Brother Broome who heard and decided the writ petition wide his judgment under appeal, held that as all the buildings belonging to the Company stood in a common compound, the entire complex being surrounded by a common wall for the purpose of levying water-tax under Sec. 129 of the Act all the buildings in one compound are to be treated as one unit and, if it is within the radius of six hundred feet from the water-stand-pipe, the Board rightly assessed all the buildings of the Company to water-tax. Accordingly, the writ was allowed and the appellate order of the District Magistrate was quashed. The Company being aggrieved has filed a special appeal. 3. Admittedly, in Khalasi Lines within the municipal area of Saharanpur the Company, which manufactures cigarettes, has erected a factory, a large number of factory buildings and residential buildings occupied by officers and staff. The entire structure of the factory as such is surrounded by a high wall. This high wall which surrounds the actual factory separates it from other buildings which are used as residences by the officers and the staff. The residential buildings are in the shape of bungalows with different names like Harrogate, Wingate, etc. Each one of them is separately enclosed either by a boundary of masonry or barbed wires. Admittedly, the bungalows were assessed separately for the levy of house-tax. Out of the many such bungalows and other sundry buildings situate in the complex only three bungalows have been found to fall within a radius of six hundred feet from the nearest water-stand-pipe. We doubt, if the whole of the complex-consisting of the factory buildings and the residential buildings is treated as one unit of building, the one or the other point of its boundary will be within six hundred feet of the nearest water-stand-pipe installed by the Board. It was denied by the Company as said above, that the factory area and the residential area consisted of a single compact area surrounded by a common compound wall. Further, it was asserted by the Company in paragraph 9 of its counter affidavit that between some of the compounds of the residential area are parcels of land which do not belong to the Company. Further, it was asserted by the Company in paragraph 9 of its counter affidavit that between some of the compounds of the residential area are parcels of land which do not belong to the Company. One such parcel of land situate near the factory area contains a mosque and grave yard which belong to other persons while another parcel of land near the entrance to the residential area was a private grave yard; yet a third parcel of land situate along the road passing through the residential area contained a tomb belonging to a mosque. In the rejoinder affidavit of the Board these facts were not denied but what was stated as a submission in reply to paragraph 9 of the counter-affidavit was that no water line or water-connection lay in the parcels of land mentioned in that paragraph. It is obvious from the facts above that the actual factory area is enclosed by a high wall. Outside this high wall lay scattered residential buildings interspersed by mosque, tomb and graveyard belonging to other persons, though, of course, there is an outer boundary consisting of partly masonry walls and partly barbed wire fencing, for protection from the trespassers and animals. As the sketch plan of the complex shows, from the Municipal road one road leads to the factory and another support road feeds the residential portion. The learned Single Judge, on In appreciation of the language of Sec. 129 read with explanations (a) and (b), accepted the argument of the learned counsel for the Board that all the houses and the factory having belonged to one and the same owner and the entire complex of buildings having been enclosed in a common compound wall along with the various houses having common access roads constructed inside the compound would be a building within the meaning of Sec. 129 (a) of the Act as falling within a radius of six hundred feet front the nearest water-stand-pipe are liable to water-tax. The learned Single Judge concluded as follows :- "It is difficult to avoid the conclusion that all the buildings belonging to the Company are standing in a common compound (even though that compound may be sub-divided into different sections), because the entire complex is surrounded by a common wall." He, further, seems of the view that even if the factory area was to be treated as one unit and the residential portion another, both these units would include the area lying within the radius of six hundred feet from the water-stand-pipe as the points at which the road appurtenant to the factory and the other road appurtenant to the residential buildings inside the compound meet the municipal road fell within six hundred feet radius of the water-stand-pipe and as these roads were compound as defined under Sec. 2(5) of the Act, both the areas would be covered by the explanation to Sec. 129(a) of the Act. 4. The crucial question that arises for determination in this appeal is whether on a correct appreciation of the language of Sec. 129 of the Act with its explanation (a) and (b) the whole complex of the, buildings of the Company can be treated as one building or each building in the complex whether part of the factory or residential buildings, will be treated as separate unit for the purposes of assessment of water-tax. 5. By its clause (x) of Sub-sec. (1) of Sec. 128 the Act empowers the Board to impose water-tax on the annual value of the buildings or lands or of both. Then, by Sec. 129 the Act restricts the imposition of water-tax. Sec. 129 at the material times for the purpose of this case read as follows :- "129. Restrictions on the imposition of water-tax. The imposition of a tax under clause (x) of Sub-sec. Then, by Sec. 129 the Act restricts the imposition of water-tax. Sec. 129 at the material times for the purpose of this case read as follows :- "129. Restrictions on the imposition of water-tax. The imposition of a tax under clause (x) of Sub-sec. (1) of Sec. 128 shall be subject to the following restrictions namely,- (a) that the tax shall not be imposed on land exclusively used for agricultural purposes, or, where the unit of assessment is a plot of land or a building as hereinafter defined, on any such plot or buildings of which no part is within a radius, to be fixed by rule in this behalf for each municipality, from the nearest stand-pipe or other water-works whereat water is made available to the public by the board; and Note :- A rule has been made separately for each municipality in which water-tax is in force fixing the radius under this clause. See model rule at page 484 of this Manual. (b) that the tax is imposed solely with the object of defraying the expenses connected with construction, maintenance, extension or improvement of municipal water-works and that all moneys derived therefrom shall be expended solely on the aforesaid object. Explanation :- In this section - (a) "building" shall include the compound (if any) thereof, and, where there are several buildings in a common compound, all such buildings and the common compound:- Note :- For definition of "compound" see Sec. 2(5). (b) "a plot of land" means any piece of land held by a single occupier, or held in common by several co-occupiers, whereof no one portion is entirely separated from any other portion by the land of another occupier or of other co-occupiers or by public property." 6. (b) "a plot of land" means any piece of land held by a single occupier, or held in common by several co-occupiers, whereof no one portion is entirely separated from any other portion by the land of another occupier or of other co-occupiers or by public property." 6. Here, the water-tax assessed by the rule is to be imposed on a building which falls within a radius of six hundred feet from the nearest water-stand-pipe whereat water is made available to the public by the Board, "Buildings" as was defined under Sec. 2(2) of the Act at the relevant time meant, "a house, but, shed, or other roofed structure, for whatsoever purpose and of whatsoever material constructed, and every part thereof, but shall not include a tent or other such portable temporary shelter." Explanation (a) to Sec. 129 of the Act extended the meaning of the "buildings" and includes within its meaning the "compound" of the "building" and, where there were several buildings in a compound, all such buildings and the common compound. Sec. 2(5) of the Act defines "compound" meaning as the land whether enclosed or not which was appurtenance of a building or the common appurtenance of several buildings. Water-tax is leviable, therefore, on buildings and hence be assessed on its annual value as defined under Sec. 140 of the Act. Any buildings falling within a circle from water-stand-pipe as the centre with six hundred feet radius is made assessable. Where a part of a building was within the circle then the annual value of the whole building will be measure on which the water tax is to be assessed. It is not open to an occupier of a part of the residential buildings to object to levy of the water-tax on the annual value of the whole building. Since the Explanation (a) to Sec. 129 of the Act gives the extended meaning to the building including compound thereof, it follows that any land which is the appurtenance of the building would be a part of the building and if it falls within the said radius fixed by the rules would be liable to be assessed on the annual value of that building. The learned Single Judge has taken the view that, since the two private roads within the complex-one feeding the factory area and the other feeding the residential area have been found to meet at the municipal road fell within the six hundred feet from the water-stand-pipe, the factory buildings and as well as all the residential bungalows, though actually the factory constructions and buildings may fall outside the limit would be assessable to water-tax, as the land covered by those private roads being appurtenant to the factory and the different residential houses which fall within the definition of "compound", thus a part of the building, being within six hundred feet of the water-stand-pipe the water-tax would be assessable. There seems to be great force in the contention of the learned counsel for the appellant that no such case was ever pleaded by the Board in the writ petitions, neither was such a case set up before the appellate authority nor was assessment made on that basis separately of the factory buildings and the residential buildings. The case of the Board before the appellate authority simply was that as the whole complex was enclosed in a common boundary wall and as some part of the boundary wall was covered within the six hundred feet limit the whole complex with all the buildings standing therein shall be liable to be assessed for water-tax as a unit. Whether the private roads inside the complex were appurtenant to the factory buildings or the residential buildings will be a question of fact which should have been raised and pleaded by the Board. The learned Single Judge was, therefore, in error in spelling out a case for the Board on such a basis for the first time in the writ petition even though it was not pleaded. Whether the two feeder roads shown in the sketch plans were appurtenant lands to the residential buildings and the factory buildings standing in the complex, could not be a question of law but it would be a question of fact and, at best, a mixed question of law and fact. Assuming that it was a question of law, even so, it was not raised and pleaded in the writ petition. 7. Some argument was made at the Bar by the learned counsel for the respective parties as to what meaning should be given to "appurtenance" of the building. Assuming that it was a question of law, even so, it was not raised and pleaded in the writ petition. 7. Some argument was made at the Bar by the learned counsel for the respective parties as to what meaning should be given to "appurtenance" of the building. For the appellant it was suggested that a land which does not pass to the transferee when the house or building is sold cannot be said appurtenant to the said house or the building and as the feeder road was outside the cartilage of each of the residential buildings standing in the complex it would not be an appurtenant land. For the respondent it was suggested that each occupier of the residential building has a right of way on the feeder road and such a right being annexed to the building, the land on which the right is to be exercised is "appurtenant". The nicety of the question would have been examined had a plea been raised by the Board before the appellate authority justifying the levy of water-tax on the basis, that, feeder road inside the complex being the appurtenant land, and, thus, fell within the definition of compound as defined under Sec. 129(a) of the Act. As already said above, no such question was raised before the appellate authority whose decision has been brought up for quashing by a writ of certiorari by the Board. This Court in its discretion under Art. 226 of the Constitution cannot quash the impugned order of the District Magistrate on a question which was never raised and pleaded before him. It is not the case of the Board that such a plea was raised but was ignored and was not decided by the appellate authority. The learned Single Judge, therefore, was in error in quashing the order of the appellate authority on altogether a new contention which was never raised and pleaded before the subordinate tribunal. 8. It is not the case of the Board that such a plea was raised but was ignored and was not decided by the appellate authority. The learned Single Judge, therefore, was in error in quashing the order of the appellate authority on altogether a new contention which was never raised and pleaded before the subordinate tribunal. 8. The question then remains, merely because the whole complex is for the purpose of protection enclosed by some masonry wall and partially by barbed wire fencing and at some points a part of the enclosure falls within six hundred feet limit, the water-tax would be leviable under Sec. 129 (a) of the Act, treating all the buildings and the land so enclosed as a unit, notwithstanding the fact that some portions of the land inside the enclosure did not belong to the Company, as noticed above. The water-tax is to be enforced and collected only on the annual value of the building or land obviously, the annual value of the building is to be determined not on the basis of the building as defined under Sec. 129(a) but as defined under Sec. 2(2) of the Act. It is the admitted case of the party that, for the purpose of house tax, the annual value of each of the residential buildings and the factory buildings have been separately determined. If the water-tax is leviable on the complex as a unit then the aggregate of the annual value of all the buildings-factory and residential-standing in the complex could be the measure for the assessment of water-tax. The matter would be plain if all the buildings as defined under Sec. 2(2) of the Act standing in the complex fell within six hundred feet radius of the nearest water-stand-pipe. The difficulty, however, arises when some of the buildings, as found by the appellate authority were situate outside the radius of six hundred feet from the nearest water-stand-pipe. Such buildings, which fell outside the limit of six hundred feet from the nearest water-stand-pipe, can be drawn within the mischief of Sec. 129 (a) of the Act by applying the extended definition of building under the said section if any part of those buildings falls within six hundred feet limit. Such buildings, which fell outside the limit of six hundred feet from the nearest water-stand-pipe, can be drawn within the mischief of Sec. 129 (a) of the Act by applying the extended definition of building under the said section if any part of those buildings falls within six hundred feet limit. This leads to the question whether that part of the land in the outer enclosure which falls within the six hundred feet limit of the nearest water-stand-pipe, can be said to be compound of factory buildings and the residential buildings standing in the complex. In this connection, on behalf of the respondent, emphasis was laid on the explanation (a) of Sec. 129 of the Act. It also lays down that where there were several buildings in a common compound all such buildings and the common compound will be included within the meaning of building. It was submitted that outer enclosure was the common compound of all the buildings inside and, therefore, all the buildings and the common compound will be covered within the meaning of building. This argument is fallacious as it confuses a common boundary with the word common compound appearing in the explanation. A wall or a fencing indicating a boundary is not a `compound' within the meaning of the Act. It is the land whether enclosed or not which is the appurtenance of the buildings or the common appurtenance of several buildings which can be said to be the `compound' under the Act. An outer boundary indicated by the barbed wire fencing or masonry wall cannot be said to be land appurtenant to the buildings inside. Indeed, it has not been pleaded so. No evidence has been led that all the land inside the enclosure or on which the boundary wall or the boundary fencing has been constructed in common appurtenance of all the buildings or is an appurtenance of any of the buildings inside the complex. The very definition of the `compound' shows that it is immaterial whether the land which is `compound' is enclosed. So a boundary wall or barbed wire fencing is not indicative of any compound as defined under the Act. It was, again, a matter of pleading and proof before the appellate authority. The very definition of the `compound' shows that it is immaterial whether the land which is `compound' is enclosed. So a boundary wall or barbed wire fencing is not indicative of any compound as defined under the Act. It was, again, a matter of pleading and proof before the appellate authority. No such material was placed before the appellate authority as to which of the land or part of the land falling within six hundred feet limit was an appurtenant land of any of the residential buildings and of the factory buildings standing inside the complex. The appellant, therefore, cannot ask this Court to quash the order of the District Magistrate who was the appellate authority merely on the circumstance that the whole complex was enclosed by a masonry wall or barbed wire fencing, a portion of which fell within six hundred feet limit of the nearest water-stand-pipe. The District Magistrate found that only three of the residential bungalows fell within six hundred feet limit of the nearest water-Stand-pipe and he was justified in relying upon the materials before him. His order cannot be said to be suffering from any error apparent or jurisdictional error. The learned Single Judge was in error in allowing the writ petition on a point which was never pleaded and urged before the Distract Magistrate the appellate authority. 9. Accordingly, this appeal is allowed, the order of the learned Single Judge is set aside and the writ petition is dismissed with costs.