I.P. Mukerji, J. - (1.) Ruby General Hospital is situated right at the crossing of Eastern Metropolitan Bypass and the Gariahat connector to it. It was set up on the initiative of two brothers, Sajal, the writ petitioner and Kamal the respondent No. 6 and a friend of Kamal, Binod Prasad Sinha. Kamal and Binod are permanent residents of USA. Both are doctors. Sajal always resided in Kolkata. This hospital was conceptualized to be technologically a most modern hospital with state of the art facilities. It was named after Kamal's deceased wife. It started functioning around the middle of April, 1995. It had the distinction of being inaugurated by Mr. Jyoti Basu, the Chief Minister of West Bengal.
(2.) In its application to the Secretary, Department of Industrial Development, Ministry of Industry made on 31st May, 1993 for approval of Foreign Non -resident Indian Investment in the public company which owned the hospital (Ruby General Hospital Limited), it was stated that the Non -resident Indian (NRI) shareholding in the company would be subject to a ceiling of Rs. 8,00,00,000/ -, not exceeding 88.88% of the total shareholding and was to be on repatriable basis. Now, "repatriable basis" and "non -repatriable basis" are different. According to Sajal who is now prosecuting this writ application, the investment had to be on repatriable basis. These expressions assumed significance at the time of allotment of shares of the company between Kamal and Sajal. Kamal, being a doctor was interested in causing to be sent to the company second hand medical equipments to be used in the hospital. The value of the equipments was stated to be as Rs. 3,05,53,290/ -. Kamal wanted this money to be treated as share application money on the basis of which shares in the company would be allotted to him. This, in foreign exchange terminology was investment on a "non -repatriable basis" because equipments were imported into India with allotment of shares. There was no outflow of foreign exchange from this country. According to Sajal, investment could only be on a repatriable basis. Foreign exchange had to come into the country, thereafter, the money would be remitted for the purchase of new equipments, against allotment of shares.
(3.) On 6th August, 1993 the Secretary to the Department of Industrial Development, Ministry of Industry granted approval for foreign equity participation subject to a ceiling limit of 88.88% amounting to Rs. 8,00,00,000/ - on repatriable basis out of which import of capital goods could be Rs. 4.20 Crores. It was for a period of two years from the date of issue of the letter. The government clarified the shareholding approval by saying that the ceiling in equity and preference capital would be 44% each.;