ORDER : Petitioners who own & operate a renewable energy-based mini hydel power project of 24.75 Mega Watt capacity are knocking at the doors of Writ Court for laying a challenge to paragraph 6.8 of the Tariff Order dated 14.05.2018 made by the 1st respondent-Commission as per Annexure-A, to the extent it denies them the benefit/exemption inter alia in the matter of levy of cross subsidy surcharge, etc., qua the solar energy producers. 2. After service of notice, respondents having entered appearance through their Panel Counsel and of them, the first respondent having filed a Statement of Objections dated 25.11.2019, resist the writ petitions, making submission in justification of the impugned order. 3. Learned counsel for the petitioners finds fault with the impugned order because : (a) the same has been issued by an incompetent authority namely the first respondent-Commission which despite mandatory requirement of law, did not have of a person from the field of law as a constituent member, in terms of decision of the Apex Court in STATE OF GUJARAT Vs. UTILITY USERS’ WELFARE ASSOCIATION, (2018) 6 SCC 21 (hereafter “Gujarat Case”); even otherwise the impugned order being quasi-judicial in character, in the absence of man of law as a member of Commission, could not have been issued in the light of the decision of the Apex Court supra; (b) the impugned order could not have been issued u/ss 62 & 64 of the Electricity Act, 2003 read with the provisions of Karnataka Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff for Distribution and Retail Sale of Electricity) Regulations, 2006 in the absence of promulgation of Regulations as contemplated under Section 43(2) of the Act, since these Regulations are silent on the subject matter of impugned order; and, (c) the impugned order is incompetent & discriminatory, inasmuch as, there is no statutory enablement for making classification between renewable energy producers inter se, since they constitute one homogenous class within the Scheme of the Act and that the classification is not founded on any intelligible differentia, having nexus with the object sought to be achieved thereby; 4. Per contra, learned Panel Counsel for the respondents together contend that: (a) the petitioners have got a right of appeal u/s 111 of the Act against the impugned order where they can have all their contentions deeply examined and therefore, they should be relegated to the appeal remedy; (b) the decision of the Apex Court in Rajastan Case supra, is prospective in operation; the prospectivity depends upon date on which one of the members of the Commission retires yielding entry of man of law as a member thereof and thus, it is not that the prospectivity is from the date of the decision i.e., 12.04.2018; (c) the impugned order is not a product of exercise of quasi-judicial power since no lis is decided thereby but, is a piece of subordinate legislation inasmuch as it relates to fixation of tariff and therefore, the grounds that usually avail in administrative law, for laying a challenge thereto do not apply to the case of petitioners; (d) the promulgation of regulations under Section 42(2) of the Act is not a precondition for issuing order of the kind in question; even otherwise, there are Regulations namely, Karnataka Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff for Distribution and Retail Sale of Electricity) Regulations, 2006 which provide for levy of cross subsidy surcharge; and, (e) in the Scheme of the Act, there exists power to classify between the renewable energy projects inter se, and accordingly the classification has been made between solar energy producers & non-solar energy producers on the basis of intelligible differentia with the object of achieving; it’s the policy of the State to boost solar energy generation and therefore, it is singled out for preferential treatment. 5. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants reprieve to the petitioners as under, for the following reasons : (I) As to whether statutory appeal is alternate & equally efficacious remedy qua the writ petition: The contention of the respondents that the impugned order being statutorily appealable, petitioners be relegated to the remedy of appeal as provided under Section 111 of the Act does not impress the Court since the Appellate Tribunal is admittedly situated at New Delhi, far away from the place of petitioners; the Apex Court in the case of ROJER MATHEW VS. SOUTH INDIAN BANK LTD., Civil Appeal No. 8588/2019, decided on 13.11.2019, at paragraphs 44 & 45 of the judgment has observed as under: “44. Having tribunals without benches in at least the capitals of States and Union Territories amounts to denial of justice to citizens of those States and Union Territories. ….. This has many adverse effects….. This also makes access to justice expensive for the litigants…....Instead of taking justice to the common man, we are forcing the common man to spend more money, spend more time and travel long distances in his quest for justice, which is his fundamental right. 45. The litigants cannot wait for judicial impact assessment and action by the Government which may or may not take place. Experience has shown that the judgments right from L. Chandra Kumar(supra) to Madras Bar Association, 2010 (supra) have not been complied with by the Union in letter and spirit. Citizens of this country cannot be denied justice which is the first promise made in the Preamble. Therefore, I am of the view that in whichever State/Union Territory the bench of a particular tribunal is not established or functioning, the litigants of that State will have a right to invoke the extraordinary writ jurisdiction of the jurisdictional High Court under Article 226 of the Constitution for redressal of their grievances. They cannot be expected to go to far off distant places and spend huge amounts of money, much beyond their means to ventilate their grievances. The alternative remedy of approaching a tribunal is an illusory remedy and not an efficacious alternative remedy. The self-imposed bar or restraint of an alternative efficacious remedy would not apply. Such litigants are entitled to file petitions under Article 226 of the Constitution of India before the jurisdictional High Court. The alternative remedy of approaching a tribunal is an illusory remedy and not an efficacious alternative remedy. The self-imposed bar or restraint of an alternative efficacious remedy would not apply. Such litigants are entitled to file petitions under Article 226 of the Constitution of India before the jurisdictional High Court. In L. Chandra Kumar(supra) it was clearly held that the right of judicial review is a part of the basic structure of the Constitution and this right must be interpreted in a manner that it is truly available to the litigants and should not be an illusory right.” The above observations are a complete answer to the objection of the respondents to the maintainability of writ petitions; (II) As to whether promulgation of Regulations u/s.42 of the Act is a sine qua non for issuing orders u/ss.62 & 64 of the Act: The contention that the impugned order could not have been issued by the first respondent – Commission in the absence of promulgation of Regulations in terms of Section 42(2) of the Act does not merit a deeper consideration inasmuch as, the Regulations made by the Commission inter alia, under this provision are already in place; they are specifically referred to in the first & second pages of the impugned order itself, as rightly contended by the learned Panel Counsel for the KERC; in fact, clause 11(iv) of the KERC Regulations 2004, a copy whereof is at Annexure-D itself provides for the exercise which the petitioner is finding fault with; thus the Regulations of the kind are at the place even if it is assumed that such Regulations are a precondition for issuing the impugned order; (III) As to whether the constitution of Commission sans a Judicial Member is valid & functional: (a) The contention of the petitioners that any order made by the first respondent Commission is non-est since there was no man from the field of law as a constituent member, is bit difficult to countenance, legally; the Apex Court in Gujarat Case (supra), although held that for the Commission to be a valid statutory body, the presence of a man from the field of law as it’s constituent member is a sine qua non, the said decision is specifically made prospective in operation, the prospectivity being dependent upon the accrual of ensuing vacancy in the Commission and appointment of a person from the field of law, thereto; thus, the contention that the impugned order is made on 14.05.2018 i.e., subsequent to the decision of the Apex Court i.e., 12.04.2018 per se, even when factually true, does not yield much milk; this view finds support from paragraphs 125.2, 125.5 & 126.6 of the said judgment which read as under: “125.2. It is mandatory that there should be a person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 125.5. Our judgment will apply prospectively and would not affect the orders already passed by the Commission from time to time. 125.6 In case there is no member from law as a member of the Commission as required….. in para 125.2 of our conclusion, the next vacancy arising in every State Commission shall be filled in by a Member of law in terms of para 125.2 above.” (b) The alternate contention of the petitioners that even if the constitution of the Commission is held to be valid despite non-appointment of a Judicial Member thereto, the impugned order being quasi-judicial in nature, could not have been issued, though all other functions could be done by the Commission, is too farfetched an argument; this contention can be taken to have been answered by the Apex Court by making its decision prospective; in the absence of any indication to the contra in the said decision, the impugned orders are saved; if the highest court of the country intended to hold the view which the petitioners are now canvassing, it would have said it in so many words; a contra argument cannot be countenanced without reading into the alien things. (V) As to whether the impugned order is quasi-judicial and therefore, can be challenged on the conventional grounds of Administrative Law: (a) the orders made by statutory authorities as the delegates of legislator may be quasilegislative, quasi-judicial or purely administrative, as the case may be; when quasilegislative, they are traditionally characterized as ‘delegated legislation’ or ‘subordinate legislation’, the popular expressions that obtain in the realm of Administrative Law; when the delegates decide some lis i.e., a dispute or difference or the like, their decisions normally are termed as quasi-judicial; the difference between quasi-judicial and administrative actions has practically withered away vide A.K. KRIAPAK Vs. UNION OF INDIA, (1970) 1 SCR 457 , is beside the point; in COOPER VS. UNION OF INDIA, (1970) 1 SCR 457 , is beside the point; in COOPER VS. WILSON, 1937 2KB 309, the English Court has laid down the following broad tests for deciding if an order is judicial/quasi-judicial: “…‘A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites: (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties; and (4) a decision which disposes of the whole matter by a finding upon the facts in dispute and an application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves(1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.” (b) going by the above test, the impugned order which in substance relates to fixation of tariff rates on which tariff should be levied arguably could have been branded as “quasi-legislative” in character and consequently, the scope of challenge would have been restrictive; vis-a-vis quasi judicial or administrative; however, it is open to the legislature to treat even such orders as being quasi-judicial; the impugned order has been issued by the first respondent-Commission in exercise of power u/ss 62 & 64 of the Act, is not in contest; the Preamble to the said order itself mentions of these sections apart from stating about the application made thereunder and of the objections of the stakeholders; if the product of a statutory exercise is, by fiction of law, quasi-judicial, then the said exercise needs to be treated as quasi-judicial only, a contra contention sounding illlogical; the Apex Court in PTC INDIA LTD VS. CENTRAL ELECTRICITY REGULATORY COMMISSION, (2010) 4 SCC 603 at paragraphs 49 & 50 has observed as under: “49. CENTRAL ELECTRICITY REGULATORY COMMISSION, (2010) 4 SCC 603 at paragraphs 49 & 50 has observed as under: “49. On the above analysis of various sections of the 2003 Act, we find that the decision-making and regulation-making functions are both assigned to CERC. Law comes into existence not only through legislation but also by regulation and litigation. Laws from all three sources are binding. According to Professor Wade, “between legislative and administrative functions we have regulatory functions”. A statutory instrument, such as a rule or regulation, emanates from the exercise of delegated legislative power which is a part of administrative process resembling enactment of law by the legislature whereas a quasi-judicial order comes from adjudication which is also a part of administrative process resembling a judicial decision by a court of law. 50. Applying the above test, price fixation exercise is really legislative in character, unless by the terms of a particular statute it is made quasi-judicial as in the case of tariff fixation under Section 62 made appealable under Section 111 of the 2003 Act, though Section 61 is an enabling provision for the framing of regulations by CERC. If one takes “tariff” as a subject-matter, one finds that under Part VII of the 2003 Act actual determination/fixation of tariff is done by the appropriate Commission under Section 62 whereas Section 61 is the enabling provision for framing of regulations containing generic propositions in accordance with which the appropriate Commissioner has to fix the tariff…” In view of the above, it can be fairly stated that the impugned order is quasi-judicial in nature and therefore, is susceptible to challenge inter alia on the conventional grounds of Administrative Law. (VI) As to whether the Act enables classification of renewable energy producers, inter se : the next contention of the petitioners that, in the scheme of the Act, there does not exist any power to discriminate between the renewable energy projects inter se, they being a homogeneous class, again is bit difficult to countenance; true it may be, that Section 42 of the Act prohibits levying cross subsidy surcharge on captive generating plants; but there is no such interdiction against providing exemptions from the levy of the kind in favour of non-captive renewable energy projects; in fact, section 86(1)(e) of the Act enables the Commission to take measures for promotion of renewable energy sources depending upon the availability and cost of power generation from such sources; thus, it cannot be gainsaid that no such power avails in the Scheme of the Act for making classification amongst the non-conventional energy producers; accepting the contention of the petitioner as to nonexistence of power for making classification runs repugnant to the object and scheme of the Act and therefore, as of necessity, such power needs to be conceded to the Commissions. (VII) As to whether classification of renewable energy producers, inter se, is valid: (a) as already mentioned above, inter alia u/s 62 r/w Section 64 of the Act, there exists power with the Commission to make classification of renewable energy producers inter se; but the existence of power is one thing and its exercise is another; the existence of power regardless of its scope, does not justify its exercise in the absence of conditions precedent contemplated under the scheme of the Act; it is the specific case of the petitioners that this power being quasi-judicial vide PTC INDIA Case supra, they ought to have been given a reasonable opportunity before they are singled out for discriminatory treatment in the matter of availing the benefit/exemption as are bestowed upon the solar energy producers; they also bank upon the doctrine of legitimate expectation of, all non-conventional energy producers being treated as one homogenous class, arguably as has been the case throughout; there is some force in this submission; (b) a cursory survey of Administrative Law in the Indian context shows that the scope of principles of natural justice and their invocation are being broadened, from precedent to precedent, the object being, minimizing of unfair treatment and maximizing the fairness in public law functions that hurt the person or purse; there is no material placed on record to prima facie show that the petitioners had an opportunity of hearing before they were excluded by the classification from claiming benefits that avail to only solar energy producers; even the God is said to have given an opportunity of hearing to Adam and Eve before punishing them for the act of consuming the forbidden fruit in the Eden Garden; this sets the measure of fairness which the instrumentalities of the State u/a 12 of the Constitution of India as widely interpreted by the Apex Court vide AJAY HASIA VS. KHALID MUJIB SEHRAVARDI, 1981 SCR (2) 79 are expected to profess and practise; the impugned action of the respondents falls short of this standard since no indication was given to the petitioners as to they being excluded from the benefits that are otherwise made available to the other members of the class; this apart, the factors on which the classification is founded were acted upon by the Commission unilaterally without having the say of other stakeholders like the petitioners; there is no reason or rhyme for this; the respondent Commission could not have acted as the East India Company used to do during the Colonial Regime; (c) the contention that the Commission could not have discriminated the other renewable energy producers qua the solar energy generators when all they constituted one homogenous class, needs deeper examination at the hands of the Commission itself because it happens to be statutorily designated authority having expertise in the matter; the Commission has to take an informed decision with the participation of all stakeholders; true it is that the Commission in it’s order dated 18.08.2014 at Anenxure-R1 to it’s Statement of Objections has explained as to why only the solar power projects need to be promoted in the State by granting incentives; subparagraphs a, b & c of the said Order read as under: “(a) Promotion of solar power: The Commission notes that, even though the State has potential of several thousands of Megawatt of solar power generation, the present installed capacity is not adequate to even meet the solar RPO of 0.25 percent of the power procured by the Distribution Licensees. The Solar Policy of Government of Karnataka dated 22.05.2014 has targeted a capacity addition of 1600 MW of solar power generation by 2021. As of now, only 41 MW of is in the pipeline. While most of this solar power generated is being sold to the ESCOMs, solar power generation for use by captive and third parties is yet to come up on a large scale. Hence there is a need to promote solar power for achieving the desired objective of capacity addition to develop the State’s potential for generation of solar energy. (b) High Court of Solar Power Projects: The solar power developers/generators have represented that the solar power projects need huge investments and they have to be financed substantially through borrowings. Hence there is a need to promote solar power for achieving the desired objective of capacity addition to develop the State’s potential for generation of solar energy. (b) High Court of Solar Power Projects: The solar power developers/generators have represented that the solar power projects need huge investments and they have to be financed substantially through borrowings. They have pointed out that greater clarity on the wheeling and banking charges and cross subsidy surcharge beyond 31st March, 2018 will enable them to obtain project finance and hence have requested the Commission to provide clarity on these charges at least for the period of debt repayment of say 10 to 15 years. The Commission has recently issued Orders on 4th July 2014, extending the concessional wheeling charges and banking charges of 5% and 2% respectively for renewable sources of energy for a period of ten years effective from the date of COD of such projects commissioned before 31.03.2018. (c) Competitive rates of Solar power: The capital cost of solar PV projects which presently ranges between Rs.7 Crores/MW and Rs.8 Crores /MW is expected to come down in future owing to new technologies, competition and economy of scale. The capital cost of other renewable sources as also their cost of generation is considerably lower, for the present, compared to solar power. It is likely that the declining trend in the capital cost of solar power projects will result in the cost generation of solar power becoming comparable to other renewables in a period of 3-4 years. The exemption from wheeling and banking charges etc. is relevant only in the context of the comparatively high capital investment on the projects likely to be commissioned in the next few years in view of the higher finance charges, etc. The exemption from wheeling and banking charges etc. is relevant only in the context of the comparatively high capital investment on the projects likely to be commissioned in the next few years in view of the higher finance charges, etc. which need to be covered by their revenues for several years.” what disadvantage the respondent Commission would have been put to, had the petitioners too were given an opportunity to come out with their versions, is not forthcoming; (d) the above apart, the Commission before acting upon the aforementioned factors ought to have taken the version of the non-solar energy producers like the petitioners herein to make the decision making process, fair and reasonable; long ago, the great Jurist John Rawls stated that, justice lies in fairness; the duty of hearing cannot be diluted by the contention that hearing would not have altered the position, is a feeble justification for denying a hearing; the reasons assigned as above for singling out the solar energy producers for a preferential treatment qua all other renewable energy generators constitute a sufficient ground for classification, merits examination at the hands of the Commission itself; such an exercise can be now undertaken de novo since the Commission which lacked the judicial member earlier when the impugned order was made, has now the advantage of one such member being there since 31.12.2018; such a post-decisional hearing would mete out justice to all the stakeholders; (e) this Court exercising limited supervisory jurisdiction under Article 227 is called upon to examine legality and regularity of the impugned order even when an appeal in terms of Sec.111 of the Act avails to the petitioners and apparently the Appellate Tribunal has also an expert Member in it; the appeal being a continuation of the original proceeding, it was open to the parties to take up the contentions both on law and facts may be true; however, this Court in judicial review does not sit in appeal; there are infirmities that have infected the impugned order, is true; the petitioners seek quashing because it is so infected; whereas the respondents argue for its sustenance; thus this Court has to strike a golden balance between these two competing claims; the subject matter of the impugned order has certain factors which an expert body like the respondent-Commission is better suited to assess and adjudge, and this Court cannot undertake the said exercise; therefore, it is desirable that instead of the impugned order being quashed, the same be reviewed by the first respondent-Commission itself. In the above circumstances, these writ petitions succeed in part, with the following reliefs: (1) a Writ of Mandamus issues to the first respondent-Commission to review paragraph No.6.8 of the impugned order dated 14.05.2018 at Annexure-A, to the extent the same denies benefits/incentives to the non-solar renewable energy producers after hearing all the stakeholders, within a reasonable period; (2) a Writ of Mandamus issues to the respondents not to take coercive action against the petitioners under the impugned order till after the review thereof, as directed above, is accomplished; and, (3) the respondents are directed to hold in trust all and whatever amount of money paid by the petitioners under the impugned order, subject to result of the review; if the review fails, the petitioners shall be liable to pay the levies in question as if the impugned order is continued intact. All contentions of the parties are kept open. No costs.