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32. Insofar as Sterling Cellular is preferred for Delhi that again is arbitrary. There is a CBI inquiry pending against it. Secondly, the foreign exchange is sought to be procured by international roaming and it is awarded 10 marks out of 10.

33. Mr Ashoke Sen, learned counsel, appearing for the Indian Telecom submits, firstly, the limits of judicial review in the matter of this kind will have to be examined. Such limits could be gathered from Sterling Computers Ltd. v. M & N Publications Ltd.5 and Union of India v. Hindustan Development Corpn.6 which lay down the methods of reaching conclusion.

43. As regards the allegation of CBI inquiry, it is submitted that the learned Judges of the High Court perused the note of the Chairman, Telecom Commission. It was only after this the Court held that there were no strictures against holding company of SCL by the name Sterling Computers Limited, in M&N Publication Ltd. v. MTNL8. It was further held that it appears to have been punished for no sin of it. There was no CBI inquiry on the date of the above judgment. It was after the judgment dated 10-7-1993, the FIR was filed which has been allowed to be proceeded with by way of directions in petition under Section 482 of the Criminal Procedure Code. This Court in Erusian Equipment & Chemicals Ltd. v. State of WB.9 has laid down that pending investigation blacklisting cannot be permitted. The said 1 ratio will apply to this case.

3. Sterling Cellular

4. Tata Cellular Madras

1. Bharati Cellular

2. Sterling Cellular

4. Tata Cellular (on an exclusive basis) While making the final selection, it should be borne in mind that Sterling Cellular has got a problem which is explained in the notes of DDG (Vig.) placed below. Sterling Computer which is mentioned in the notes of DDG (Vig.) flag 'C' has a tie-up with Sterling Cellular from the list of approved operators.

Summarizing, the following operators are recommended for giving the cellular licence-

(c) Any delay in allotment of licence to M/s Sterling on account of the CBI investigations will have the least adverse effect in Madras for lack of competition to other licensee.

M(S) may kindly examine them again in the light of the observations of MOS (C) and rework out the select list. The case may be put up for approval of MOS (C). sd/-

10- 10- 1992"

Then it came to be selected on the approval of the Minister.

146. The High Court in upholding the selection observed thus "The case of Sterling Cellular, however, appears to us to be rather strange. There were no strictures against the holding of this company by the name Sterling Computers Ltd. in M&N Publications Limited v. Mahanagar Telephones Nigam Limited8 by this Court and the strictures were only against MTNL and United India Periodicals Pvt. Ltd. (UPI) and United Database (India) Pvt. Ltd. (UDI). M/s Sterling Computers Ltd. had got associated with UPI/UDI in getting a supplementary agreement for publication of telephone directories for the cities of Bombay & Delhi. This supplementary agreement was struck down. The Supreme Court in appeal Sterling Computers Limited v. M&N Publications Limited5 against the judgment also did not appear to have made any strictures. There was nothing on the record of the respondents to suggest that any CBI enquiry was pending against this company. There was no FIR and no preliminary report adverse to the company and we feel the ghost of CBI has been unnecessarily brought into play. The company appears to have been punished for no sin of its. However, since the company has not complained we will leave the matter at that.', It is submitted by Mr Parasaran that as on the date of the judgment no inquiry was pending. It was only after 10-6- 1993 an FIR was filed by CBI when the High Court of Madras was approached for quashing the FIR under Section 482 CrPC. An order by consent was passed. CBI was allowed to proceed with the investigation and complete the same within one year. It was also ordered that there would be no arrest or harassment. Therefore, as on the date of selection there was no adverse report against Sterling Computers.