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MANILA ELECTRIC COMPANY, Petitioner, -versus- HON. LORNA
NAVARRO-DOMINGO, in her capacity as the Presiding Judge, Regional Trial
Court, Branch 201, Las Piñas, and CARMENCITA B.
LOTA, Respondent. |
G.R. No. 161893 Present: QUISUMBING, Chairperson, CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: |
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D E C I S I O N
CARPIO MORALES, J.:
The present petition for certiorari
under Rule 65 of the 1997 Revised Rules of Civil Procedure assails the Order[1]
dated December 22, 2003 issued by public respondent, Presiding Judge of the
Regional Trial Court (RTC), Branch 201, Las Piñas
City, directing, on the application of private respondent, Carmencita
B. Lota (Carmencita), the
issuance of a writ of preliminary injunction in Civil Case No. LP-03-0260, and the
Order[2]
dated
On
At about 2:00
o’clock in the afternoon of the same day, MERALCO’s
field personnel Rener N. Musngi
(Musngi) and M. Almeda III
(Almeda), together with an unidentified companion, returned
to Carmencita’s house and served a Notice of
Disconnection and Meter Facilities Inspection Report upon her son Raymond Lota.[5]
By MERALCO’s claim, the illegal installation entailed losses
to it in the amount of P1,302,239.25 representing unregistered electric
consumption for a 3-year period from
Carmencita refused to settle the bill, however, hence, MERALCO
refused to reconnect her service line.
Carmencita thus filed before the RTC of Las Piñas a Complaint,[7]
which was later amended,[8]
for reconnection of electric service line with prayer for preliminary mandatory
injunction and damages, docketed as Civil Case No. LP-03-0260 (the case) and raffled
to Branch 201 presided by public respondent.
On Carmencita’s motion, a hearing on her prayer for the
issuance of a writ of preliminary mandatory injunction was conducted
following which public respondent issued an order dated
It appears,
however, that public respondent had earlier motu
proprio set aside the
Manifestation having filed
by plaintiff through counsel alleging that a Writ of Preliminary Mandatory
Injunction
be issued the Order dated
Considering that the
plaintiff has showed sufficient reasons alleged in the complaint and the
affidavit of plaintiff as well as the evidence presented during the hearing of
this case that a Writ of Preliminary Injunction should issue, the plaintiff
is hereby required to post a bond as required by law in the sum of TEN THOUSAND
(P10,000.00) PESOS, Philippine Currency for approval of the Court within five
(5) days from receipt hereof.
SO ORDERED.[10]
(Emphasis and underscoring supplied)
The immediately
above-quoted Order of
Under consideration is the
Manifestation by plaintiff through counsel alleging that a Writ of Preliminary Mandatory
Injunction be issued and finding the same to be well taken, the Orders dated
December 22, 2003 and January 9, 2004 is (sic) hereby set aside.
It appearing, further that
the plaintiff has showed sufficient reasons alleged in the complaint and the
affidavit of plaintiff as well as the evidence presented during the hearing of
this case that a Writ of Preliminary Mandatory Injunction should issue, the plaintiff
is hereby required to post a bond as required by law in the sum of TEN THOUSAND
(P10,000.00) PESOS, Philippine Currency for approval of the Court within five
(5) days from receipt hereof.
SO ORDERED.[11]
(Emphasis and underscoring supplied)
Public
respondent explains that she set aside the Order of December 22, 2003 and the
first Order of January 9, 2004 to incorporate, in her second January 9, 2004
Order (second paragraph thereof), the word “mandatory,” Carmencita
having prayed for the reconnection, not prohibition of the disconnection, of
her electric service line.[12]
Carmencita soon posted a bond in the amount of P10,000,
and a Writ of Preliminary Mandatory Injunction[13]
was issued on February 5, 2004 by public respondent, ordering the therein
defendants MERALCO, Almeda, Musngi
and John Does to immediately reconnect Carmencita’s
electric line/services and refrain from committing further acts of
disconnection.
Hence, the
present petition for certiorari of MERALCO.[14]
MERALCO (hereafter
referred to as petitioner) posits that public respondent acted with grave abuse
of discretion
I
. . . IN ISSUING THE WRIT OF
PRELIMINARY INJUNCTION IN THE ABSENCE OF BAD FAITH ON THE PART OF THE PETITIONER
IN EXERCISING ITS RIGHT UNDER THE LAW;
[AND]
II
. . . IN REQUIRING THE PRIVATE RESPONDENTS TO POST
AN INJUNCTION BOND NOT IN THE AMOUNT OF THE DIFFERENTIAL BILLING BEING
CLAIMED BY THE PETITIONER AS REQUIRED BY RA 7832.[15] (Underscoring supplied)
Petitioner argues that the inspection
conducted on November 10, 2003 which resulted in the discovery of the illegal
electrical connection, as well as the disconnection of the electric service,
was done in full compliance with the requirements of Republic Act No. 7832, “Anti-electricity and Electric Transmission
Lines/Materials Pilferage Act of 1994” – in the presence of a police
officer, with notice of disconnection, albeit after the act, duly served on Carmencita’s representative containing its findings and differential
billing.[16] It further argues that the said law allows
“automatic” disconnection by the electric utility in case of illegal use of
electricity.[17]
Petitioner furthermore argues that
public respondent gravely abused her discretion amounting to lack or excess of
jurisdiction when she fixed the injunction bond in the amount of P10,000
only, instead of P1,302,239.25, as under the law, the bond should be equal
to the differential billing, penalties and other charges.[18]
Carmencita,
on the other hand, contends that the petition is moot because the assailed
Petitioner counters, however, that public
respondent merely reproduced, in its Order of January 9, 2004 (second), not set
aside, its Order dated December 22, 2003 granting Carmencita’s
application for the issuance of a writ of preliminary injunction.
The record fails to show, and there is
no word from the parties, that the Writ of Preliminary Mandatory Injunction eventually
issued by public respondent had been implemented.
While the assailed December 22, 2003 Order
was indeed set aside, it was reissued, by the first and second January 9, 2004
Orders, with the intercalation of the word “mandatory” in the first and second
paragraphs of these January 9, 2004 Orders, respectively.
The decision of the present petition thus
hinges on the propriety of the issuance of the Order directing the issuance of
the Writ of Preliminary Mandatory Injunction requiring petitioner to reconnect Carmencita’s electric service, conditioned upon her posting
of a P10,000 bond.
Section 9 of Republic Act No. 7832 provides:
SECTION
9. Restriction on the Issuance of
Restraining Orders or Writs of Injunction. — No writ of injunction or
restraining order shall be issued by any court against any private electric
utility or rural electric cooperative exercising the right and authority to disconnect
electric service as provided in this Act, unless there is prima facie evidence
that the disconnection was made with evident bad faith or grave abuse
of authority. (Emphasis and
underscoring supplied)
Unless,
therefore, there is prima facie evidence that the disconnection of
electric service was made with evident bad faith or grave
abuse of authority, a writ of injunction or restraining
order may not issue against any private electric utility or rural electric
cooperative exercising the right and authority to disconnect such service.
By petitioner’s witness Almeda’s own admission,[19]
however, the Notice of Disconnection was served on her son three hours after
the disconnection of Carmencita’s electric
service. Evidently, the prior notice
requirement under the law was violated. This
prima facie evinces bad faith or
grave abuse of authority on the part of petitioner which sufficed as basis for
the grant of the order for the issuance of the Writ of Preliminary Mandatory Injunction.
The requirement of prior notice before
disconnection of electric service is not a futile expletive in the law. In
fact, even if there is prima facie evidence of illegal use of
electricity and immediate disconnection is warranted under the
circumstances, prior notice is still required as mandated under Section 4 of R.A.
7832 which reads:
SECTION
4. Prima Facie Evidence. — (a)
The presence of any of the following circumstances shall constitute prima
facie evidence of illegal use of electricity, as defined in this Act, by
the person benefitted thereby, and shall be the basis
for: (1) the immediate disconnection by the electric utility to such person after
due notice, (2) the holding of a preliminary investigation by
the prosecutor and the subsequent filing in court of the pertinent information,
and (3) the lifting of any temporary restraining order or injunction which may
have been issued against a private electric utility or rural electric
cooperative:
x x x x
(v) The
presence in any part of the building or its premises which is subject to the
control of the consumer or on the electric meter, of a current reversing
transformer, jumper, shorting and/or shunting wire, and/or loop
connection or any other similar device;
x x x x (Emphasis
and underscoring supplied)
And
even if the consumer is caught in flagrante delicto committing
the acts enumerated in Section 4(a), Section 6 of the same law still requires
prior written notice or warning, thus:
SECTION
6. Disconnection of Electric Service.
— The private electric utility or rural electric cooperative concerned
shall have the right and authority to disconnect immediately the electric
service after serving a written notice or warning to that effect, without
the need of a court or administrative order, and deny restoration of the same, when the owner of the house or
establishment concerned or someone acting in his behalf shall have been caught in
flagrante delicto doing
any of the acts enumerated in Section 4(a) hereof, or when any of the
circumstances so enumerated shall have been discovered for the second time: Provided,
That in the second case, a written notice or warning shall have been issued
upon the first discovery x x x (Emphasis and underscoring supplied)
Petitioner’s
argument that immediate disconnection under the circumstances surrounding the
case validly dispenses with prior notice of disconnection thus fails.
Respecting
the sufficiency of the bond, there is no showing how petitioner arrived at the differential
billing[20] of
more than P1,000,000 to serve as substantial basis[21] therefor. Albeit the
law fixes the bond to be
“equivalent to the
‘differential billing,’ penalties and other charges, or to the total value of the
subject matter of the action,” a court, even for purposes of fixing the bond
for the issuance of the writ of preliminary mandatory injunction, may not
blindly rely on the bare assessment of the petitioner. For the purpose behind the requirement to
post a bond is to secure the enjoined party against any damages it may incur if
the injunction turns out to have been wrongfully issued.
The
amount of the bond, then, ordinarily depends on the gravity of the potential
harm to the enjoined party, and when the court determines that the risk of harm
is remote, or that the circumstances otherwise warrant it, the court may fix
the amount of the bond accordingly and, in some circumstances, a nominal bond
may suffice.[22]
Parenthetically,
that it took three years, as reflected above, for petitioner to discover the
illegal installation evinces negligence[23] on
its part which could serve as additional basis for the issuance of the writ of
preliminary mandatory injunction.
At
all events, petitioner was not without remedy against the issuance by public
respondent of the writ. For Section 9 of
still the same aforecited statute provides:
Section
9.
x x x x
If,
notwithstanding the provisions of this section, a court issues an injunction or
restraining order, such injunction or restraining order shall be effective only
upon the filing of a bond with the court which shall be in the form of cash or
cashier's check equivalent to the "differential billing," penalties
and other charges, or to the total value of the subject matter of the action: Provided,
however, That such injunction or restraining order shall automatically
be refused or, if granted, shall be dissolved upon filing by the public
utility of a counterbond similar in form and amount
as that above required: Provided, finally, That whenever such
injunction is granted, the court issuing it shall, within ten (10) days from
its issuance, submit a report to the Supreme Court setting forth in detail the
grounds or reason for its order. (Emphasis
and underscoring supplied)
It appears, however, that petitioner did
not avail of such remedy to afford the trial court opportunity to assess the
probable relative damages[24]
which petitioner and herein private respondent Carmencita
may suffer.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A.
QUISUMBING
Associate Justice
Chairperson
|
ANTONIO T. CARPIO Associate Justice |
DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO, JR.
Associate Justice
ATTESTATION
I attest that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Article VIII, Section 13 of the
Constitution, and the Division Chairperson’s Attestation, it is hereby
certified that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the
Court.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Rollo, p. 27.
[2]
[3] Records, p. 1.
[4] Rollo, pp. 10-11.
[5] Records, p. 2 and rollo, p. 11.
[6] Rollo, p. 11. Vide records, p. 236.
[7] Records, p. 1-4.
[8]
[9] Supra note 2.
[10]
[11]
[12] See letter of public respondent to Deputy
Court Administrator Christopher Lock dated
[13] Records, pp. 301-302.
[14] Rollo, pp. 3-24.
[15] Rollo, p. 12.
[16]
[17]
[18]
[19] TSN,
[20] Section 6 of the law provides:
For purposes of this Act,
"differential billing" shall refer to the amount to be charged to the
person concerned for the unbilled electricity illegally consumed by him as
determined through the use of methodologies which utilize, among others, as
basis for determining the amount of monthly electric consumption in
kilowatt-hours to be billed, either: (a) the highest recorded monthly
consumption within the five-year billing period preceding the time of the
discovery, (b) the estimated monthly consumption as per the report of load
inspection conducted during the time of discovery, (c) the higher consumption
between the average consumptions before or after the highest drastic drop in
consumption within the five-year billing period preceding the discovery, (d)
the highest recorded monthly consumption within four (4) months after the time
of discovery, or (e) the result of the ERB test during the time of discovery
and, as basis for determining the period to be recovered by the differential
billing either: (1) the time when the electric service of the person concerned
recorded an abrupt or abnormal drop in consumption, or (2) when there was a
change in his service connection such as a change of meter, change of seal or
reconnection, or in the absence thereof, a maximum of sixty (60) billing months
up to the time of discovery: Provided, however, That such period shall,
in no case, be less than one (1) year preceding the date of discovery of the
illegal use of electricity.
[21] Vide:
Manila Electric Company v. Macro Textile Mills Corporation, G.R. No.
126243,
That the claim for differential billing must have substantial
basis can be inferred from this Court’s ruling in Quisumbing
v. Manila Electric Company, 429 Phil. 727, 753 (2002), holding that:
Not only did respondent show how
the meter examination had been conducted by its experts, but it also
established the amount of P193,332.96 that petitioners owed respondent. The
procedure through which this amount was arrived at was testified to by Meralco’s senior billing computer, Enrique Katipunan. His testimony was corroborated by documentary
evidence showing the account’s billing history and the corresponding
computations. Neither do we doubt the documents of inspections and examinations
presented by respondent to prove that, indeed, there had been meter tampering
that resulted in unrecorded and unpaid electrical consumption.
[22] 42 Am Jur 864.
[23] Vide:
Manila Electric Company v. Macro Textile Mills Corporation, supra at 85;
Ridjo Tape & Chemical Corp. v. Court of
Appeals, G.R. No. 126074, February 24, 1998, 286 SCRA 544, 553.
[24] Director
of the Bureau of Telecommunications v. Aligaen, 144
Phil. 257, 275 (1990).