CA junks bid of Panay power firm to lift expropriation of its assets

ILOILO CITY –– The Court of Appeals (CA) has junked the bid of the Panay Electric Company (Peco) to suspend the expropriation proceedings covering its distribution assets.

In a 17-page resolution promulgated on October 3, the CA’s Eighteenth Division denied Peco’s application for the issuance of a temporary restraining order (TRO) or writ of preliminary injunction (WPI) to stop the expropriation proceedings before the Iloilo City Regional Trial Court (RTC) Branch 35.

But lawyer Estrella Elamparo, legal counsel of Peco, insists that the resolution “does not serve a purpose because the case is now before the Supreme Court.”

Elamparo said they had filed a motion to withdraw their case before the CA because this has been “overtaken by events” and has become moot and academic.

In its resolution, the CA said it has no jurisdiction to restrain or enjoin the expropriation proceedings, citing a provision of the Electric Power Industry Reform (Epira) law, which cites that only the Supreme Court could stop the implementation of the law.

It said the expropriation case filed by More Power is considered an implementation of the Epira law because its franchise includes the power of eminent domain.

The court said that even granting that it has the authority to stop the expropriation proceedings, it “does not see an urgent and paramount necessity for the preliminary injunctive writ to prevent serious damage.”

The appellate court dismissed Peco’s argument that continuing the expropriation proceedings would result in “grave and irreparable damage,” including the closure of its business and disruption of power distribution service in Iloilo City.

“The foregoing shows that PECO’s apprehension of its closing business is not actually attributable to the expropriation proceedings or the issuance of a (writ of possession) in MORE’s favor, but instead, to the non-renewal of its franchise. As for PECO’S fear of having Iloilo City plunged into darkness, suffice it to say that MORE is actually averting the same by pursuing its obligations as the grantee of a Legislative Franchise to operate as a (distribution utility) in the area.”

More Power, owned by shipping magnate Enrique Razon Jr., is seeking to expropriate Peco’s distribution assets valued at least P481,842,450 based on Republic Act 11212 which granted the company a 25-year franchise to distribute electricity in Iloilo City.

Peco’s franchise expired on Jan. 18 but the Energy Regulatory Commission has granted a provisional Certificate of Public Convenience and Necessity to Peco to continue distributing power in Iloilo City to prevent any disruption of power supply to consumers amid the continuing legal dispute between the rival firms.

Under RA 11212 signed by President Duterte on February 14, More is given two years to acquire or put up its distribution facilities.

The Mandaluyong RTC in July declared Section 10 (right of eminent domain) and Section 17 (transition of operations) of RA 11212 as void and unconstitutional for infringing on Peco’s rights to due process and equal protection of the law.

Peco is seeking the suspension of the Iloilo RTC expropriation proceedings until the validity of provisions of RA 11212 is ascertained by the Supreme Court.

But in its resolution, the CA said the Mandaluyong RTC ruling “does not accord PECO a clear and unmistakable right.”

It said the ruling is not yet final citing a pending motion for reconsideration filed by the Office of the Solicitor General and a pending petition for review on certiorari filed by More Power before the Supreme Court.

A petition for review on certiorari is a legal action against a judgment of a lower court based on questions of law.

The Iloilo RTC Branch 37 earlier granted the issuance of the writ of possession to More Power. The case is now before the RTC Branch 35 presided by Judge Daniel Antonio Gerardo Amular.

Last week, More Power filed a motion asking Amular to inhibit himself in the case alleging that the judge is biased against the company.

Amular has yet to rule on the motion.