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27. Regulation 153(15) of the Supply Code, 2014 has undergone amendment by the Kerala Electricity Supply (Amendment) Code 2016, which came into force on 4.2.2016, by adding the words ‘except in the case of consumers billed on the basis of connected load’ at the end of that sub-regulation. Such an amendment was made when it was found that, the application of Regulation 153(15) to the consumers who are charged on connected load basis, would result in the licensees incurring financial loss in as much as, for the additional connected load the licensees are entitled for charges demanded on connected load basis.

2. Moreover, the Regulation 153 of the 2014 Code deals with estimation and regularisation of unauthorised additional load. The regulation defines the threshold for the additional loads to be considered as unauthorised additional load. It is also provided that the licensee may, suo motu or on an application from the consumer, regularise such additional load mentioned in clause (a) and clause (b) of Regulation 153(4).

3. Regulation 153(15) provides further that the unauthorised additional load in the same premises and under the same tariff shall not be reckoned as unauthorised use of electricity, except in the case of consumers billed on the basis of connected load. Regulation 153(15) of the Code 2014 has undergone amendment by way of the Kerala Electricity Supply (Amendment) Code 2016, which came into force on 04.02.2016, by adding the words ‘except in the case of consumers billed on the basis of connected load’ at the end of that sub-regulation. Such an amendment was made when it was found that, the application of Regulation 153(15) to the consumers who are charged on connected load basis, would result in the licensees incurring financial loss in as much as, for the additional connected load the licensees are entitled for charges demanded on connected load basis. Even this amendment as on date is sought to be rendered nugatory by the appellant Board with its plea to strike down the Regulation (s) as ultra vires.

4. To understand the letter and spirit of the impugned judgment it is imperative to note that at paragraph 26 of the impugned judgement, the High Court has observed that as far as domestic consumers are concerned, the fixed charges are imposed at a specified rate irrespective of the connected load or the energy charges for actual consumption. It is stated by the Court that even if there is excess connected load in the premises of a domestic consumer, the electricity charges realisable from the consumer do not change and as such, additional connected load would not result in any financial loss to the licensee. Essentially the domestic consumer would have to pay for the actual energy consumed. Notably, there is no variation in the fixed charges.

59. This Court in Punjab State Electricity Board v. Vishwa Caliber Builders Private Limited reported in (2010) 4 SCC 539 had the occasion to consider the Punjab State Electricity Regulatory Commission (Forum and Ombudsman) Regulations, 2005. In the said case, the challenge was to the order passed by a Division Bench of the Punjab and Haryana High Court whereby it had dismissed the writ petition filed by the appellant therein against the order of Ombudsman, Electricity, Punjab who in turn reversed the decision of the Disputes Settlement Authority and directed refund of the amount recovered from the respondent therein towards Advance Consumption Deposit (ACD) service connection charges and load sur charge. In para 13, 14 and 15 this Court observed as under: