1. This is a writ petition under Article 226 of the Constitution.

2. The prayer contained in the petition is, that a writ of mandamus may be issued, requiring the respondent to refund to the petitioner the sales tax realized by the petitioner in excess of three pies per rupee, on sale by it, of dhotis, saris, chadars, towels, canvas, rags and fents during the assessment years 1948-49 to 1955-56. Assessment orders in respect of these years were passed on 5th October, 1950, 26th April, 1956, 2nd January, 1957, 19th September., 1959, 20th August, 1955, 6th September, 1957, 12th November, 1956, and 21st May, 1958, respectively. Some of these orders were passed on appeal, or on re-assessment, under appellate orders of remand. There is also a prayer that the said assessments orders be quashed in so far as they impose a tax in excess of three pies per rupee in respect of the articles mentioned above. The writ petition was filed on 21st October, 1959. The point raised in the writ petition is that what is taxable under entry 2 of List I of the Notification No. ST 117.X-923-1948, dated 8th June, 1948, issued under section 3-A of the U.P Sales Tax Act, is “cloth manufactured by mills”, and the articles mentioned above do not fall under that description and were not taxable at six pies per rupee but were merely general articles taxable at three pies per rupee under section 3. Hence the sales tax paid in excess of three pies per rupee in the years in question on the petitioner's turnover of those articles was paid under a mistake of law and by reason of the decision of the Supreme Court reported in Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf [1958] 9 S.T.C 747., the petitioner was entitled to refund.

3. As regards the delay in filing the writ petition, it was argued that under section 22 of the U.P Sales Tax Act, there is a period of three years from the date of the order provided for a rectification application. The application for rectification was made by the petitioner on 3rd June, 1959, but no orders had yet been passed on that application. It was admitted, that originally, the period mentioned in this section was “one year”, but in 1959 one year was substituted by “three years” with effect from 1st April, 1959.

4. So far as the attempt to explain delay on the basis of the provisions of section 22 of the Act or the rectification application dated 3rd June, 1959, is concerned, it seems to me that there is no substance at all in the submission of the learned counsel. Some of the impugned orders were passed, even earlier than three years from the date of the rectification application. Apart from this it was only with effect from 1st April, 1959, that a period of three years was provided in place of the period of one year, and the period of one year had expired long since in the case of all the orders except one. Further the rectification of which section 22 speaks, is rectification only of any “mistake apparent on the face of the record”. Reliance, therefore, on the provisions of section 22, or on the rectification application, appears to me to be wholly pointless so far as the question of the delay in filing the writ petition is concerned.

5. It was also argued that the decision of the Supreme Court referred to above furnished a cause of action for filing a suit on discovery of the mistake of law by reason of that decision. The Supreme Court decided that case on 23rd September, 1958, and the report of the case was published in the Law Reports in the end of 1958, or the beginning of 1959. Hence the writ petition filed on 21st October, 1959, was not unduly delayed.

6. I do not agree that the decision in that case led to the discovery of the mistake of law, if any, in this case. All that was held in that case was that where sales tax had been paid under a mistake of law, it may be refundable in certain circumstances. The history of that litigation is, that in the case reported in Budh Prakash Jai Prakash v. The Sales Tax Officer, this Court had held that the levy of sales tax on transactions of forward contracts was not valid. This decision was affirmed by the Supreme Court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash [1954] 5 S.T.C 193.. Kanhaiya Lal Makund Lal Sharraf, who had also paid sales tax on transactions of forward contracts, thereupon claimed refund by a writ petition, which was allowed by a single Judge of this Court on 30th November, 1954. This decision was widely published in the newspapers and became well known to the business community in this State. A large number of claims for refund were lodged with the Government on the basis of the single Judge decision. These facts are so well known that judicial notice of them might properly be taken. The decision of the single Judge was affirmed by a Division Bench by an order dated 1st December, 1955, reported in State of Uttar Pradesh v. Kanhaiya Lal Makund Lal Sarraf [1956] 7 S.T.C 579.. On appeal to the Supreme Court, the decision was affirmed by the Supreme Court on 23rd September, From what has been stated above, it is clear that there was nothing in the case of Kanhaiya Lal Makund Lal Sharraf, which could lead to the discovery of the alleged mistake of law that the entry “cloth manufactured by mills” did not cover the articles mentioned above. It follows, that this decision could not lead to the discovery of the alleged mistake of law.

7. It was next argued that the decision at least led to the awareness of the right to refund. Even if it may be assumed, for the sake of argument, that that decision had any such result, the petitioner must have become aware of that decision, as early as 30th November, 1954, when the learned single Judge decided the case, and the decision was published in the newspapers. Even assuming that it missed the report of that case in the newspapers, the petitioner and its legal adviser must be deemed to have become aware of it at least in 1956, when the report of the decision of the Division Bench in that case was published in the Law Reports. Even the report of the Supreme Court decision was published in 1958. It has been noticed that the writ petition was not filed until 21st October, 1959. It is hopelessly out of time from any one of the three dates of the decision in Kanhaiya Lal Makund Lal Sharraf just mentioned above.

8. Even the rectification application under section 22, on which reliance was placed, was filed on 3rd June, 1959. The writ petition was filed beyond 90 days of even this date. It follows that the petition is liable to be dismissed on the ground of delay and laches alone.

9. As, however, the learned counsel addressed me at some length on the merits of the petition also, I propose to deal with the petition on its merits also.

10. It has been argued that “cloth” is different from “clothes”. “Clothes” are garments or apparel ready for wear. Dhotis and saris manufactured by the petitioner are garments or apparel, and, therefore, “clothes” and not “cloth”. It has also been argued, that chadars and towels are ready for use for specific purposes, and cannot be turned into something different, which “cloth” is intended to be, and as such, they also do not come under the description “cloth”. Canvas is also intended for being used for specific purposes. With regard to rags and fents, it is argued that they are waste material, while “cloth” intended for being turned into garments is not, and therefore, rags and fents also do not come under the description “cloth”.

11. In support of his submission, learned counsel relied upon a decision of this Court, reported in Jaswant Rai Jai Narain v. Sales Tax Officer. In this decision at page 390 of the report, it was stated as follows:—

“The first point to be decided is whether the articles sold by the applicant can be treated ‘as cloth manufactured on handlooms’ within the meaning of the notification mentioned above. We are of opinion that they cannot be so treated. The word ‘cloth’ is to be distinguished from ‘clothes’ or garments. Cloth is the fabric or material from which ‘clothes’ are made as wearing apparel or as other articles of personal use. What is exempted under the notification is ‘cloth’ and not ‘clothes’. What the applicant does is to take handloom cloth and either cut it into specific sizes or to have them manufactured into specific sizes, so that the pieces can be used as saris, bed covers, lihafs (quilt covers) etc., and then to print them so that they can be readily used for the purpose for which they are meant. It is quite obvious that the articles in which the applicant deals are ‘clothes’ or garments and not ‘cloth’ within the meaning of the notification.”

12. In that case, under a Government Notification “cloth manufactured on handlooms” was exempt from sales tax. The petitioner, in that case, held a licence under the U.P Hand Printers and Hand Dyers Licensing Order, 1949. He was carrying on the business of selling saris, lihafs, fards and bed covers after cutting handloom cloth into specific sizes, and printing on them. It was the petitioner's case that the cloth sold by him did not lose its character of handloom cloth by the mere fact that it had been printed and put in the form of saris, covers for quilts and bed covers. The case of the department there was that the printed handloom articles, sold by the petitioner, in that case, were not cloth, but ready-made garments, fit for personal wear and use, and were, therefore, not covered by the notification.

13. From the facts of the case, it is quite clear that that case dealt with a wholly different situation. The petitioner in that case did not sell “cloth manufactured on handlooms”. Before he sold that cloth, he cut it and prepared pieces from it suitable for use as wearing apparel and for other purposes. He mingled his labour with it and printed on it. He changed the material or article, as it came out of the hand-loom, and converted it into a different kind of material or article. It was rightly held in that case, if I may say so with respect, that the articles sold by the petitioner in that case, were not entitled to exemption as “cloth manufactured on handlooms”. It appears to me, that on the facts of that case, it was not strictly necessary to draw a distinction between “cloth” and “clothes”. The distinction drawn also appears to me to be somewhat unreal and inconclusive for the reason that, even if saris might come under the word “clothes”, lihafs, fards, and bed covers certainly could not. These are neither garments nor wearing apparel; nor to my mind, does the adaptability for specific use of particular articles made of cloth, provides the crucial test for determining, whether a particular article is cloth simpliciter or something else. I am, therefore, of the view that that case must be confined to its own facts, and cannot furnish any guidance for the determination of the question, which I have to decide in this case.

14. In the English language the distinction between “cloth” and. “clothes” is well-marked. In the Shorter Oxford English Dictionary “cloth” has been defined to mean “a piece of woven or felted stuff, suitable for wrapping, spreading over, etc.; as, a table cloth, a breadth of canvas, a length of woven fabric, a piece of cloth.” “Clothes” has been defined to mean “covering for the person; wearing apparel; dress, raiment, vesture.”

15. In Western countries, garments or wearing apparels are made out of cloth only after cutting and stitching the cloth into various sizes and shapes. I am not aware that with the possible exception of muffler or comforter or wrapper, any article of European clothing is just a piece of cloth. Even these have the stitching with tassels hanging from the two ends. From this it follows that the essential difference between “cloth” and “clothes” is that whereas cloth is what comes straight from the weaving or the textile factory, “clothes” are something after “cloth” has been converted by cutting and stitching and something having been done to “cloth” either by human or machine agency to make that “cloth” into a garment or wearing apparel.

16. So far as the dhotis and the saris which are manufactured by the petitioner are concerned, they are sold as they come out of the mills, with nothing more at all being done to them by any other agency. There is no conversion of one kind of product into a different kind of product by any additional expenditure of human labour and skill. The mere fact that dhotis and saris are of particular sizes, whereas, generally speaking “cloth” manufactured by the mills is of much greater length does not also to my mind furnish any distinguishing feature. It is well known that rolls of cloth come in different sizes, some rolls being of 40 yards, others of 24 yards, still others of 20 yards. Some expensive suiting is manufactured only in lengths of 3½ yards, so that there-may be no two pieces available of the same kind, and the wearer may have the unique distinction that no other person has a suit, like the one, which he has. The adaptability of a particular cloth for a particular kind of use can also furnish no guide. These days, we have “cloth” which is specially adaptable for shirts or suits or trousers, and is known only as “shirting”, “suiting” or “trousering”. Therefore, the mere fact that dhotis are adaptable for use by men, and saris for use by women, can also not make these lose their character as mill-made cloth. I find from a reference to the same dictionary that a sari is defined as “a long wrapping garment of cloth or silk, worn by Hindu women; also the material of this”, which shows that a sari is just a piece of cloth. Similarly a sarong is defined as “the Malay national garment; a long strip of cloth, worn tucked round the waist like a skirt.” A dhoti is described as “a loin cloth to be tied round the loins.” It follows that in the English language dhotis and saris are merely pieces of cloth, even though they might also be adaptable for use as garments without anything more being done to them, after they have been manufactured. Thus neither the size in which a particular cloth is manufactured, nor its adaptability for a particular use, nor the fact that it can straightaway be used as a garment can make cloth manufactured by a mill cease to be “cloth”. Of course, where, after cloth has been manufactured, something more is done to it, by some other agency, which makes it into a different kind of product or makes it adaptable for a particular kind of use, it would cease to be “cloth” simpliciter and will have to be described by a different name.

17. Coming now to chadars and towels, it will again be seen, that in the case of these also, except for the fact that they are manufactured in particular sizes, and are adaptable for particular uses, nothing further is done to them to make them, as they come out of the mill, into a different kind of product. It follows that they also continue to be mill-made “cloth”. In the dictionary meaning quoted above, a “table cloth” has been included in the definition of “cloth”. It is clear that a table cloth is of a particular size and is adaptable for a particular use only. Still it is described merely as a kind of cloth just as a cloth specially suitable for shirts is described as “shirting”, or a cloth adaptable for suits is described as “suiting”. It would make no difference if a shirting cloth was manufactured and sold in lengths of three yards or two and a half yards, just as it makes no difference if a suiting cloth is manufactured and sold in lengths of 3½ yards. Further it is the usual thing for bed-sheets, pillow cases, bed covering and wrapping to be described as “house-hold linen” or “bed linen”. “Linen” Only means cloth. It follows that so far as chadars and towels are concerned, they are also merely “cloth”.

18. Nothing very much was said about “canvas” by the learned counsel for the appellant. Clearly, it is also only cloth specially adaptable for tentage or similar use. As shown above mere adaptability for a particular use does not cause a cloth cease to be “cloth”.

19. The last two articles are “rags” and “fents”. These are pieces of cloth of varying sizes which on account of defect in manufacturing have to be sold separately from properly manufactured cloth. To my mind the nature of these, as a fabric, is not different from the nature of perfectly manufactured cloth. This must necessarily fetch lesser price. But that should not make any difference to their true nature as cloth. They may or may not be amenable to the same use as perfectly manufactured cloth, but it has been shown that a particular use does not change the nature or the character of the product, which still remains “mill-made cloth”.

20. The description in the entry is “cloth manufactured by mills”. It seems to me that so long as it is cloth, as shown above, and so long as it is manufactured by mills, the requirements of the entry are satisfied. To my mind, the true test is that it is cloth if it is merely the product as turned out by the mills, and nothing further or more is done to it by any other agency. It follows that the submission of the learned counsel on the merits has no force and must be rejected.

21. There is one other aspect of the matter to which I might advert. It seems to me that no injustice has been caused to the petitioner, merely because he has had to pay sales tax on these articles. Admittedly the petitioner realised sales tax from purchasers on the sale of these articles. In a particular case it might happen that a petitioner may have collected sales tax merely by way of abundant caution, and on the express understanding, that in case the sale of a particular article was found not to be chargeable with tax, the amount shall be refunded to the purchaser. No such agreement or understanding has been pleaded, much less proved, in this case. There may be some hardship involved in a case, where a dealer may not have collected sales tax, and may have paid it from his own pocket under a mistake of law. That is not the case here. It therefore seems to me, that even if it is assumed that the tax was paid by the petitioner under a mistake of law, it has not been shown that any manifest injustice was caused to the petitioner, and which alone can entitle the petitioner to relief, in a petition under Article 226. For this reason also the writ petition must fail. No other point was pressed.

22. The writ petition fails and is dismissed with costs.

23. Petition dismissed.