ELISEO B. LEMI, PETITIONER VS. BRIGIDO VALENCIA, ET AL.,RESPONDENTS

On January 11, 1963, upon application of respondent Alfredo M. Cargo,
supported by a sworn statement subscribed by his co-respondent, Heraclio San
Juan, the Court of First Instance of Manila issued a Search Warrant authorizing
them to search radio station DZQR located at 603 Ronquillo St. Sta. Cruz,
Manila, and to seize and take possession of the radio transmitter used thereat,
allegedly in violation of law. On that same date and in the middle of a
broadcasting program, they accompanied by agents of the Presidential Anti-Graft
Committee (PAGCOM) served the search warrant, made the corresponding search, and
seize the transmitter then being used at the aforesaid station.

Subsequently, Eliseo B. Lemi filed with Us a special civil action of
mandamus, with a petition for the issuance of a preliminary mandatory injunction
against Brigido Valencia, Secretary of Public Works and Communications; Roberto
M. San Andres, Chief, Radio Control Office; Alfredo M. Cargo, Agent of the
abovenamed secretary; Heraclio San Juan, Radio Regulations Inspector, Radio
Control office; and Conrado Cajator, Chairman, Presidential Anti-Graft
Committee.

After respondents had been summoned and required to show cause why the
preliminary mandatory injunction prayed for should not be issued, a hearing
thereon was held, and the matter is now before US for resolution.

It appears that by virtue of Republic Act No. 1553 petitioner is the holder,
of a franchise authorizing him to construct, install maintain, and operate radio
stations in the Philippines. On January 8, 1960, he was issued a license by the
Radio Control Office, Department of Public Works and communications, to
construct, maintain, and operate radio station DZQR, with an assigned frequency
of 740 kc, at 603 Ronquillo St. City of Manila, which location was, with
approval of the authorities concerned, subsequently transferred to Globe Theater
Bldg., corner of Raon st. and Quezon Boulevard, Manila, and again, with proper
authority, returned to its original location where the search mentioned
heretofore was made.

The first license (No. 5931) issued to petitioner on January 8, 1960 was for
the period from May 24, 1960 to May 23, 1961. On April 12, 1961, he filed an
application for its renewal to cover the period from May 24, 1961 to May 23,
1962, and paid the corresponding fees. Although the Radio Control Office appears
not to have acted at all on this application, petitioner continued to operate
his station without any interference whatsoever from said office, this giving
rise, naturally, to the presumption thai it had no objection to the continued
operation of said station. On May 31, 1962, petitioner filed a second
application for renewal to cover the period from May 24, 1962 to May 23, 1963
and paid the corresponding fees. Again the Radio Control Office took no action
on the matter, one way or the other, thus inducing petitioner to believe that
there was nothing irregular or wrong with his application and with the continued
operation of his station. In fact, as late as December 7, 1962, respondent San
Andres, on behalf of his co-respondent, the Secretary of Public Works and
Communications, requested petitioner to feature some matters in his radio
broadcasts as a public service feature. Up to the time of the hearing on the
motion for the issuance of a preliminary mandatory injunction, there had been no
hearing held on the question of whether petitioner’s last application for
renewal should be approved or disapproved.

Respondents admit petitioner’s authority to operate the radio station
mentioned heretofore but claim that in the operation thereof he had, in
violation of law, used a transmitter different from the one he was authorized to
use for the purpose; that the transmitter petitioner was authorized to use was
UNELMANCO BCT 500 S/N RCD 0503 which, with the approval of the Radio Control
Office, was later changed to COLLINS T.M. 400 S/N RCD 0637, while the
transmitter used by him and seized under the search warrant already mentioned
was one without any name plate or serial number.

Petitioner denies the above allegations of the respondents and claim that the
seized radio transmitter was.the COLLINS transmitter which the Radio Control
Office had authorized it to use instead of the original UNELMANCO transmit tor;
that if it appeared not to have any visible name plate or serial number, it was
due to the fact that, it being a mere second hand surplus equipment, it had to
bs repainted.

The fact that petitioner had been allowed to operate his radio station for so
long practically without any interference on the part of the Radio Control
Office would seem to support his contention.

True, a memorandum submitted on March 29, 1962, by Eliodoro B. Jose, Head,
Project No. 2, to the Chief, Radio Control Division, is to the effect that, in a
previous report made by him, he had stated that when he inspected petitioner’s
station then located at the Capitol Technical Institute Building he was shown a
permit for the transfer of the station from Globe Theater Building to the
Capitol Technical Institute Building; that the transmitter then being used was
not the same for which the permit to transfer was issued; that he advised
petitioner to apply for the corresponding permit to purchase, possess, or
construct the transmitter so that a license may be issued for the new station;
but the same report shows that Mr. Jose had recommended that a license be issued
to petitioner upon the filing of the corresponding application; that the
non-closure of radio station DZQR, inspite of an order given to Mr. Jose to have
it closed was explained by him in another memorandum of March 26, 1962, this
Being the reason—presumably—why the station continued to operate without any
interference on the part of the Radio Control Office. This report or memorandum
itself, shows that, aside from the claim that the radio transmitter used at the
time by petitioner was not the one he was authorized to use, the same was not
objectionable in any other respect; that its use was known and was to a certain
extent tolerated by the Radio Control Office.

That because of the seizure of the radio transmitter petitioner’s station can
not continue broadcasting is undeniable. In fact, by reason of the seizure
effected in the middle of a broadcasting program, the latter had to be
discontinued. It can not be denied, therefore, that, in practical effect, the
seizure amounted to a closure of the station and/or disapproval of petitioner’s
application for the renewal of his license.

Section 3 of the Radio Control Act provides that no application for the
renewal of station or operator license shall be disapproved without giving the
licensee a heaving. This legal provision was implemented by Department Order No.
11, series of 1950, Section 17 which provides, inter alia, that a radio station
license may also be revoked for violations cf the radio laws and regulations,
local or international, provided, however, that no such license shall be revoked
without giving the licensee a hearing.

While, as already stated, petitioner’s last application for renewal of
license has not been disapproved, we believe that the requirement of a hearing
applies not only if a radio license is to be revoked, but also before the Radio
Control Office may lawfully do anything that, for all practical purposes, would
amount to such revecation because it makes it impossible for the radio station
concerned to continue broadcasting. This, precisely, is the situation obtaining
in the present case.

But respondents claim that the seizure of petitioner’s transmitter was
effected lawfully because it was done pursuant to a search warrant issued by the
Court of First Instance of Manila. We perceive no force and validity in this
argument. That the seizure was made under authority of a search warrant can not
obliterate the fact that such seizure was made in violation of the law requiring
a previous hearing. The application for the issuance of the warrant amounted, in
effect to an effort to evade the law requiring said hearing.

While courts should exercise great care in granting preliminary mandatory
injunction because the writ operates not merely to preserve the status quo
between the parties but to compel one of them to perform a positive act;
nevertheless, we held in Meralco vs. Del Rosario 22 Phil. p. 433, that in cases
of extreme urgency; where petitioner’s right to the writ is clear: where
considerations of relative inconvenience are strongly in his favor; where there
appears to be a willful invasion of petitioner’s right the injury inflicted upon
him being a continuing one; and where the effect of the mandatory injunction
would not be to create a new relation between the parties but solely to
re-establish a pre-existing relation between them recently and arbitrarily
interrupted by the respondent, courts should not hesitate in chanting the writ.
Considering the facts obtaining in the present case, particularly the
circumstance that petitioner’s inability to continue broadcasting through his
radio station affects his contractual relations with third parties, we find it
justified to grant the preliminary writ of mandatory injunction prayed for.

Wherefore, upon the filing by petitioner and approval by this Court of a
bond, in the sum of P1,000.00, let the writ of preliminary mandatory injunction
prayed for be issued commanding respondents to return to petitioner the radio
transmitter mentioned in the latter’s verified petition.

Bengzon, C. J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes,
J.B.L., Barrera, Paredes, Regala and Makalintal, JJ., concur.