ARROW TRANSPORTATION CORPORATION, PETITIONER, VS. THE HON. FILOMENO C. KINTANAR AND SALVADOR B. JAPITANA, RESPONDENTS.

In PSC Case No. 70-1604, herein respondent Salvador B. Japitana was
the applicant in the Public Service Commission for a certificate of public con­venience
to operate 20 units of PU automobile service in Cebu. Hearing of the application was set for April 8, 1970 and notices
thereof were published in newspapers of general circulation in Cebu. No opposition having been filed, the
application was considered as an uncontested case and heard ex parte
before Commissioner Filomeno C. Kintanar, who rendered a decision on April 30,
1970, ordering the issuance of the certificate of public convenience applied
for.

On May 16, 1970 the Arrow Transportation Corporation, a duly
authorized operator of a PU automobile service in Cebu, filed a motion for
reconsideration of the decision of Commissioner Kintanar, alleging that it was
affected by the application but had not been served with a copy thereof nor
with a copy of the notice of hearing, as required by the regulations of the
Commission and by the terms of the said notice itself. The prayer in the motion for reconsideration
was: (1) to immediately recall or set
aside or vacate the decision entered on April 30, 1970; (2) to require the
applicant to furnish a copy of the application and notice of hearing to the
existing affected PU operator, Arrow Transportation Corporation, Cebu City, so
that the latter can file its opposition; (3) to set the case for hearing de
novo with notice thereof to the herein oppositor.

On June 18, 1970 the Public Service Commission en banc,
including respondent Commissioner Kintanar, issued an order granting the motion
for reconsideration, reopening the case and returning it to the Second Division
(of which said respondent was a member) “with the end in view of allowing
the oppositor to introduce its evidence.”

The basic decision of Commissioner Kintanar grant­ing respondent
Japitana’s application stated that it would become final thirty (30) days after
notice thereof to the applicant, or after April 30, 1970. Under date of July 21, 1970 Japitana filed a
petition with the Public Service Commission, alleging that he was “a
holder of (a) certificate of public convenience granted with twenty (20)
units…;” that he was supposed to register the same from April 30 to May
30, 1970, but that he had only five (5) units then available; and praying that
he be given an extension of time to register the twenty (20) units granted to
him.

Herein petitioner opposed the request for ex­tension on the
ground, inter alia, that the order of the Commission en banc
dated June 18, 1970 had the effect of vacating the decision of April 30, 1970,
and consequently there was no basis for the extension prayed for. Overruling the opposition, respondent Com­missioner
issued an order on August 5, 1970, granting respondent Japitana an extension of
60 days. Petitioner moved to reconsider
but was turned down; hence the instant petition for certiorari with
preliminary injunc­tion to annul the said order of August 5, 1970. The injunction asked for was ordered issued
by resolution of this Court of October 21, 1970.

It is clear that the order complained of was without basis. It purported to extend the period for the
implementation of a decision which had been vacated and set aside, precisely so
that herein petitioner could file its opposition and present its evidence. In other words there was nothing to extend
insofar as the period for registration of the units mentioned in the decision
was concerned. It is pointless to speak
of the authority of the Public Service Commission to grant provisional permits
for the operation of public utilities, because no such provisional permit was
given here. The order of August 5, 1970
was not one, but simply a grant of extension of time to register a number of
units by virtue of a decision which had become non-existent for that
purpose. To consider that order as in
effect a provisional permit would be in­consistent with the sense of the
resolution of the Commission en banc granting petitioner’s motion
to set aside or vacate the decision and ordering that the case be set for
hearing de novo with notice to said petitioner.

Respondent’s contention that the reception of evidence in
contested cases may be delegated to one commissioner is beside the point. It is not his power to receive evidence that
is questioned, nor even his power to issue ancillary orders in the course of
the hearing. For the order complained
of, assuming that it is incidental in character, is incidental not with respect
to the reception of evidence but with respect to a decision that no longer
exists. Respondent’s other arguments –
that there is need for increased transportation facilities in Cebu; that such
need is not being adequately supplied by petitioner; and that the latter’s
purpose in filing the instant petition is to assure himself of a monopoly of
the business – are matters that should be addressed to the Public Service
Commission, for which purpose precisely a rehearing of respondent’s application
was ordered, wherein the parties could present their respective sides.

Wherefore, the writ prayed for is granted; the order
complained of, dated August 5, 1970, is set aside; and the case is remanded for
further proceedings in accordance with the order of the Commission en banc
dated June 18, 1970. Costs against
private respondent.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Castro, Fernando,
Teehankee, Barredo, Villamor, and Makasiar,
JJ., concur.