PHILIPPINE AIR LINES, INC. PETITIONER, VS. CIVIL AERONAUTICS BOARD, AND JACOB S. LIM, RESPONDENTS.

Petition for certiorari by Philippine Air Lines (hereinafter referred
to as PAL) to set aside and declare void a resolution of February 4, 1965 of
respondent Civil Aeronautics Board (hereinafter referred to as CAB) approving
the application of Jacob S. Lim, the other respondent, operator of the Southern
Air Lines, for a provisional permit to operate four (4) DC-3 aircrafts
effective from the date of the receipt of such resolution up to the time the
decision by the CAB of his application.

It was alleged by PAL and admitted by both respond­ents, that on
or about February 18, 1963, respondent Lim filed with respondent CAB an
application to increase his equipment by four (4) additional DC-3 aircrafts;
that said application was referred to a CAB Hearing Examiner for reception of
evidence; that within the reglementary period,
petitioner PAL entered its appearance and manifested its opposition to the
application with respect to necessity, mode, form, and procedure; that on April
10, 1964, respond­ent Lim filed an Amended Application; that on April 20, 1964,
petitioner PAL filed its Manifestation and Opposition to Amended Application;
that again on June 25, 1964, respond­ent Lim filed a Second Amended
Application; and that while the hearings before the Hearing Examiner were still
being conducted, respondent Lim on September 8, 1964 filed an Application for a
provisional authority to operate his proposed additional four (4) DC-3
aircrafts.  (Pars. 2 to 8, Petition).

It was alleged that the aforesaid application for provisional
authority was opposed by petitioner PAL (par. 9, Petition), but both
respondents while admitting the fact of such opposition stressed that it was
made verbally during the hearing of the application before the respond­ent
board (par. 2, Answer of Lim; par. 2, Answer of CAB).  PAL further claimed that its opposition to
the application appears “well-founded” because the report dated October 27, 1964 of the hearing
Examiner recommended deferment of decision until the same was submitted for
final decision.  Respondent CAB answered
that the report of the Hearing Examiner was “a conclusion devoid of proper
premises” and unduly giving “weight or validity to petitioner’s
opposition which was made only verbally” no grounds being specified (par.
3, Answer of CAB).  Respondent Lim on the
other hand characterized said “verbal opposition” as having been
“merely interposed as a sham, as demonstrated by the fact that petitioner,
having had the opportunity, never bothered to file a formal opposition or
memorandum setting forth specifically the grounds of its objections.”  (par. 6, Answer of Lim).

There is likewise admission by both respondents that in a CAB
letter dated January 27, 1965, reference was made to CAB resolution of January
22, 1965 deferring action on Lim’s Application and requiring him to confer with
the CAB staff concerning its computation showing a loss of Ninety-Three
Thousand (P93,000.00) Pesos for his operation of four (4) DC-3 aircrafts.  (par. 11, Petition).  The allegation of the petition that not long
thereafter, respondent CAB under its Resolution of February 4, 1965, approved
Lim’s application for provisional authority, was admitted by respondent CAB
with the further averment that before such issuance, the matter was heard by it
on October 29, 1964, on January 22, 1965 and February 4, 1965 (par. 5, Answer of
CAB).

Such averment received a more extended treatment with documentary
support in the Answer of Lim to the effect that at the hearing on October 29,
1964, the CAB decided to defer action on respondent’s application for
provisional authority until after the submission of a Project Study for the
development of rural services, a notarized contractual undertaking by a James
L. Chiongbian definitely showing a commitment to
extend a loan of P1,000,000.00 for the acquisition of the additional equipment
of respondent and a Project Study for the operation of four (4) DC-3 aircrafts
for scheduled domestic services; that on November 20, 1964, such revised
Project Study for the operation of four (4) DC-3 aircrafts on a non-scheduled
basis, together with a program for the development of a rural service, and a
notarized undertaking of Chiongbian showing a
definite commitment to extend a loan in the amount of P1,000,000.00 to finance
the acquisition of the additional equipment were submitted; that on January 22,
1965, at the hearing of his application for provisional authority, it was re­solved
to defer action on the application, its technical staff being directed to
confer with respondent Lim to as­certain the correctness of the computation of
the Hearing Examiner as to the estimated loss of P93,000.00 monthly, the extent
of the proposed service to be devoted to the development of rural areas and the
proposed operation of such DC-3 service on a scheduled basis; that pursuant to
said resolution, the technical staff of the CAB upon prior notice to all
existing airlines, including the petitioner PAL, convened a conference on
February 2, 1965, to thresh out the three above points, PAL however not sending
any representative to such conference; that on February 3, 1965, a memorandum
was submitted by Lim to the CAB disproving the computation of the Hearing
Examiner that there would be a loss of P93,000.00 a month and showing the
extent of his proposed rural service, as well as the feasibility of operating
on scheduled basis; that on February 4, 1965, his application for provisional
permit to operate was heard by the CAB “at which the profitability of
respondent’s proposed DC-3 service, the extent of his proposed rural service,
and the feasibility of operating the proposed service on a scheduled basis were
thoroughly discussed and debated by the technical staff and herein petitioner
PAL on one hand and the herein respondent on the other”; and that at the
said meeting of the CAB on February 4, 1965. 
The CAB approved a resolution granting said permit to operate his
additional equipment consisting of four (4) DC-3 aircrafts.  (par. 5, Answer of Lim).

Thereafter on February
17, 1965, petitioner PAL filed a Motion for Reconsideration of the
CAB Resolution of February 4, 1965.  Lim filed his Opposition, the Motion for
Reconsideration being denied by CAB in its Resolution of March 4, 1965. 
(pars. 13-15, Petition).

Petitioner would thus have this Court declare void such CAB grant
of provisional authority to operate alleging denial of due process, assigning
as alleged errors of CAB the failure to hear the evidence which it could offer;
the absence of any factual basis for the affirmative action on the part of CAB,
the findings of the Hearing Examiner being in fact opposed to the grant of provisional
authority; the absence of the reason for said grant; the absence of any finding
of the public need, urgent or otherwise, calling for said grant of authority
and the failure to disclose to it the documents or evidence which support the
legality of the grant of the provisional authority to operate.  Tersely put, Ang Tibay v. Court (69 Phil. 635), a 1940 landmark decision on
the “fundamental and essential requirements of due process in trial and
investigations of an administrative character” is invoked to show that CAB
exceeded its jurisdiction or at the very least acted with grave abuse of
discretion.

That is the main issue before us. 
Before reaching it however, respondents would have us avoid passing on
the matter by setting a procedural obstacle. 
Both respondents speak of the interlocutory character of the challenged
resolution and for that reason, characterize it as non-appealable.  Such objection need not detain us long.  It calls only for a summary disposition to
clear the path for the pivotal issue that calls for our determination.  This is not a petition for review under the
Civil Aeronautics Act of the Philippines.^[1]
Instead what we have here is the special civil action of certiorari enabling a
person ag­grieved to complain against any tribunal, board, or officer
exercising functions judicial in character, acting without or in excess of
jurisdiction or with grave abuse of discretion.^[2]
The availability of such remedy against administra­tive agencies is now beyond
dispute.  (Guiting
v. Director of Lands, L-12906, Sept. 29, 1960; NDC v. Collector of Customs,
L-19180, October 31, 1960; Taylor v. Gimenez,
L-17656, May 30, 1962; Sambrano v. Public Service
Commission, L-18459, Sept. 29, 1962; Filipino Pipe and Foundry Corp. v. WCC,
L-20381, Dec. 24, 1963; Phil. Rabbit Bus Line v. WCC, L-20614, May 25, 1964; Malabon Restaurant v. Hearing Officer, L-22199, Jan. 31,
1966; Batangas Laguna Tayabas
Bus Co., v. PSC, L-25994, Aug. 31, 1966).

Even in the absence of such decided cases, to name only a few,
impressive for their number and unanimity, and this were considered a question
of first impression, the same conclusion is unavoidable.  The stage has been reached which in the
current terminology of Administrative Law is referred to as ripeness for
judicial action, a matter in the language of an authority to be determined not
“by formula but by seasoned balancing of certain typical and relevant
factors for and against the assumption of jurisdiction.”^[3]
Why it should be thus is explained in this wise: “Now that the judiciary
is no longer generally hostile to the administra­tive process and has
established and accepted for itself a limited role, it need no longer operate
in the gingerly self-deprecating manner of a guilt-conscious, barely tolerated
intruder.  It need only ask how, given
its limited role, it can provide efficiently, with due regard for limited
competence, the service which it is duty bound to give to those who have a
legitimate interest in the legality of the challenged action.”^[4]

Once assume that the problems posed by
administrative action “are real and present or imminent” not merely
“abstract or hypothetical or remote” there is justification for the
invocation of the judicial machinery.^[5]

The procedural hurdle out of the way, we are faced with our real
problem.  If the fundamental canon of
fairness embodied in the due process guaranty and required by the leading Ang Tibay decision invariably
followed subsequently (La Magalona & Co. v. The
Workmen’s Compensation Commission and Pedro Geronca,
L-10338, April 30, 1957; Dominador Danan, et al., v. Aspillera, et
al., L-17305, November 28, 1962; National Development Co., et al., v. Collector
of Customs, Manila, L-19180, October 31, 1963; Vigan
Electric & Light Co., Inc. v. Public Service Commission, L-19850, January
30, 1964; Commissioner of Immigration v. Hon. F. Fernandez, et al., L-22696;
May 29, 1964; Manila Electric Co., v. Public Service Commission, L-13638-40,
June 30, 1964; Borja v. Morena,
L-16487, July 31, 1964; Manila Electric Co. v. Public Service Commission,
L-24406, June 29, 1965; and Aboitiz Shipping Corp. v.
Pepito, et al., L-21335, Dec. 17, 1966) were set at
naught and disregarded, petitioner is entitled to the remedy prayed for.  If such be the case, then the force of the
above decisions calls for the setting aside of the challenged resolution.

Such is not the case however. 
The above recital of the circumstances under which the provisional grant
of authority to respondent Lim, a prior grantee of a certificate of public
convenience and necessity to increase his equipment by four (4) DC-3 aircrafts
for the operation of the domestic non­scheduled services, negates the
imputation of arbitrariness on the part of respondent CAB.  It is undisputed that the CAB was not
precipitate in approving such application for provisional authority.  It required a submission of a pro­ject study
for the operation of the increased equipment together with a program for the
development of a rural service and a notarized undertaking by a principal who
would extend a loan in the sizeable amount of P1,000,000.00 to finance the
project.  Moreover, there was a
conference with prior notice to existing airlines to consider the above points,
PAL being notified but not sending any representative.

Nor should it be overlooked that respondent Lim asserted that
before the resolution granting such provisional permit to operate was granted
by the CAB on February 4, 1965, there was a hearing at which the profitability
of Lim’s proposed DC-3 service and the feasibility of such operation on a scheduled
basis were discussed and debated by the technical staff of the CAB as well as
those of PAL and respond­ent Lim.  There
was no express denial of such on assertion by PAL in its Brief.  Considering moreover that under the Civil
Aeronautics Act, the CAB has the specific power “to issue, deny, amend,
revise, alter, modify, cancel, suspend, or revoke, in whole or in part, upon
petition or complaint or upon its own initiative any temporary operating
permit”,^[6]
the invocation by PAL of Ang Tibay
v. Court is futile and un­availing.

There is thus no reason to sustain petitioner’s plea.  The statute aside, it bears repeating that
the burden of showing essential unfairness must be shouldered by him who claims
such injustice.  In this instance, the
task proved too much for petitioner.  The
action taken by the CAB in granting such provisional authority did not offend
against procedural due process.  Tested
then either under the controlling statute or the applicable judicial doctrines,
the resolution of the CAB cannot be set at naught and stigmatized as void.

WHEREFORE, this petition for certiorari is denied.  Without costs.

Reyes, JBL, Acting C.J., Makalintal, Bengzon, Zaldivar, Sanchez, Ruiz Castro
and Angeles, JJ., concur.

Concepcion, C.J., and Dizon, JJ., on official leave.

^[1]
Sec. 49, Republic Act No. 776.

^[2] Rule 65, Sec. 1.

^[3]
Jaffe, Judicial Control of Administrative Action (1965), at p. 396.

^[4]
Jaffe, op. cit., at p. 404.

^[5] 3
Davis, Administrative Law Treatise
(1958), at p. 116.

^[6]
Sec. 10 (C) (1) Republic Act No. 776.