TOMAS LITIMCO, PETITIONER, VS. LA MALLORCA, RESPONDENT.

Tomas Litimco filed a petition before the Public Service Commission
praying for authority to operate a TPU service on the line
Manila-Malolos via Sta. Isabel with the use of 10 units. To the
petition several operators filed written oppositions. On the date set
for hearing, petitioner adduced evidence in support of his petition,
but none of the oppositors submitted evidence in support of their
oppositions. Thereafter, the petition was submitted for decision.

On November 7, 1958, before the Public Service Commission could
render its decision, La Mallorca, another operator, moved to reopen the
case stating that if the petition to operate the line proposed be
granted it would work to its prejudice and so it requested a reopening
in order that it may file its opposition and present evidence in
support thereof. The motion was granted and, accordingly, the case was
set for hearing on January 12, 1959. However, instead of presenting
evidence in support of its opposition, La Mallorca moved for
postponement, only to announce days later that, instead of merely
objecting to the petition, it decided to file an application under a
separate number (Case No. 63120) requesting for authority to operate
the same line applied for by petitioner by rerouting 4 of its 10 round
trip units on the line Malolos-Manila via Guiguinto. To this
application several oppositions were presented, including petitioner
himself, although only the latter presented evidence in support of his
opposition. Because of the identity of the issues involved, the two
applications were heard jointly.

After a protracted hearing, the Public Service Commission rendered
decision denying petitioner’s application but granting that of
respondent on the ground that the latter has a better right to render
the service applied for. Petitioner interposed the present petition for
review.

Petitioner contends that the Public Service Commission erred in
giving preference to the application of respondent in disregard of his
own because (a) his application was filed much ahead than that of
respondent and as such it is entitled to preference under the
well-settled doctrines of this Court; (b) in awarding the line to
respondent it in effect gave recognition to the unfair attitude of
respondent which only awoke out of its slumber when petitioner applied
for the service on the line in question; and (c) to grant the service
in favor of respondent will work to the prejudice of the riding public
for it would be allowing respondent to abandon a portion of its service
on its original line Manila-Malolos via Guiguinto, a service which was
previously found to promote the need and convenience of the people in
said territory.

Respondent, meeting these arguments, advance the following reasons:
(a) respondent’s application for rerouting will not involve any
increase of trips or units nor will involve the purchase of new trucks,
while that of petitioner would call for the use of 10 new trucks, which
means a further depletion of the already deplteted dollar reserve of
our government; (b) respondent’s application for rerouting will not
involve the acquisition of an operating right over the national highway
from Malolos railraod crossing up to Guiguinto, while on the other
hand, petitioner’s application will involve the acquisition of a new
operating right; and (c) in view of the fact that the line in question
covers only 7 kilometers of new territory which traverses three
sparsely populated barrios, the Public Service Commission was justified
in granting to respondent the authority to re-route its already
authorized trips to serve a few available passengers in the new route.

There is no doubt that petitioner was the first to apply for the
service in the territory in question. Through his amended application,
petitioner has applied for the new service as early as October 24,
1958, while respondent only was awakened and followed suit when it
filed its application on January 21, 1959, after petitioner’s
application was already submitted for decision. Since it is admitted
that petitioner is financially competent and able to operate the line
proposed, for it is a matter of record that he is also an operator of a
bus line from Manila to Malolos via Bula-can, we see no plausible
reason why he should not be given preference to operate the service
applied for considering that he is the first one to apply for such
line. This is in accord with the policy constantly adopted by this
Court in analogous cases, which we find to be sound, to stave off any
act of discrimination or partiality against any applicant for operation
of a new line.^[1] While there
may be cases where an applicant, even if ahead in time, was not given
the service, it is because it was proven that he was financially
incompetent, or otherwise disqualified, to render the service. If an
applicant is qualified financially, and is able to undertake the
service, he should be given the preference as a matter of fairness and
justice. Indeed, this Court has postulated that “priority in the filing
of the application for a certificate of public convenience is, other
conditions being equal, an important factor in determining the rights
of the public service companies.”^[2]
Considering that petitioner has filed his application much ahead in
point of time than respondent, and is financially competent, the action
of the Public Service Commission in giving preference to respondent is
not justified.

The argument that the application of petitioner for the operation of
the new line calls for the purchase of 10 new trucks which would result
in further depletion of the dollar reserve of our government, while the
application for rerouting of respondent will not entail any further
expenditure, is of no consequence, if the operation will redound to the
benefit of the riding public. The operation of a new line as a general
proposition always involves a new investment which may happen even with
old operators. In the course of operation, and with the passing of
time, new equipment and facilities may be found necessary to maintain
an efficient service, which additional expenditure cannot certainly be
considered as a cause for disruption of the service. This is a matter
of finance which concerns exclusively the one who desires to operate
the new line. At any rate, the new line merely covers 7 kilometers of
new territory which traverses three sparsely populated barrios and
considering that respondent did not deem it necessary to cover said
territory except after the passing of many years, and only thought of
giving the service when petitioner filed his application, fairness
requires that preference be given to petitioner.

Wherefore, the decision appealed from is reversed. It is ordered
that petitioner be extended the certificate of convenience applied for
by him in his petition. Costs against respondent.

Padilla, Labrador, Coneepcion, Reyes, J.B.L., Barrera, Paredes, and Dizon, JJ., concur.

^[1] Benitez vs. Santos, 107 Phil., 167; Lopez vs. Santos, 107 Phil., 167.

^[2] Batangas Transportation Company, et al. vs. Orlanes and Banaag Transportation Company, 55 Phil., 175.