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[G.R. No. 158793. August 29, 2006]

JAMES MIRASOL, et al. v. DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS, et al.

En Banc

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated AUG. 29, 2006

G.R. No. 158793 (James Mirasol, et al. v. Department of Public Works and Highways, et al.)

x ------------------------------------------------------------------------------------------------------------------------ x

Petitioners and respondents seek partial reconsideration of the Court's Decision dated 8 June 2006 declaring void Department Order Nos. 74, 215, and 123 of the Department of Public Works and Highways (DPWH), and the Revised Rules and Regulations on Limited Access Facilities of the Toll Regulatory Board (TRB). The Court declared valid Administrative Order No. 1 of the Department of Public Works and Communications. Petitioners likewise seek clarification on some portions of the Decision.

This case originated from a petition filed by petitioners in the trial court, seeking the declaration of nullity of the administrative issuances for being inconsistent with the provisions of Republic Act No. 2000[1]cralaw (RA 2000), entitled "Limited Access Highway Act."

Sections 3 and 4 of RA 2000 reads:

SEC. 3. Authority to establish limited access facilities. - The Department of Public Works and Communications is hereby authorized to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities: Provided, That within provinces, cities and towns, the establishment of such limited access facilities insofar as they affect provincial, city and municipal streets and plazas shall have the consent of provincial board, city or municipal council as the case may be.

SEC. 4. Design of limited access facility. - The Department of Public Works and Communications is authorized to so design any limited access facility and to so regulate, restrict, or prohibit access as to best serve the traffic for which such facility is intended; and its determination of such design shall be final. In this connection, it is authorized to divide and separate any limited access facility into separate roadways by the construction of raised curbings, central dividing sections, or other physical separations, or by designating such separate roadways by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers, stripes and other devices. No person, shall have any right of ingress or egress to, from or across limited access facilities to or from abutting lands, except at such designated points at which access may be permitted, upon such terms and conditions as may be specified from time to time. (Emphasis supplied)

Administrative Order No. 1 (AO 1), issued on 19 February 1968, prohibited motorcycles on limited access highways. The pertinent provisions of AO 1 read:

SUBJECT: Revised Rules and Regulations

Governing Limited Access Highways

By virtue of the authority granted the Secretary [of] Public Works and Communications under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following rules and regulations governing limited access highways are hereby promulgated for the guidance of all concerned:

x x x x

Section 3 - On limited access highways, it is unlawful for any person or group of persons to:

x x x x

(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized);

x x x x[2]cralaw (Emphasis supplied)

DPWH Department Order No. 74 (DO 74), Issued on 5 April 1993, declared portions of the North Luzon Expressway and the South Luzon Expressway as limited access facilities. DO 74 reads:

SUBJECT:    Declaration of the North Luzon Expressway from Balintawak to Tabang and the South Luzon Expressway from Nichols to Alabang as Limited Access Facilities

Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their proper[t]y abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial [sic] vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic."

Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities."

Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the Balintawak to Tabang Sections of the North Luzon Expressway, and the Nichols to Alabang Sections of the South Luzon Expressways, to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB).

In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the purpose of assuring the continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB.

This Order shall take effect immediately.[3]cralaw

DPWH Department Order No. 215 (DO 215), issued on 25 June 1998, declared portions of the R-1 Expressway and the C-5 Link Expressway as limited access facilities. DO 215 reads:

SUBJECT:    Declaration of the R-1 Expressway, from Seaside Drive to Zapote, C-5 Link Expressway, from Zapote to Noveleta, of the Manila Cavite Toll Expressway as Limited Access Facilities.

Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, buses, and other commercial vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic."

Section 3 of the same Act authorizes the Department of Public Works and Communications (now Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities."

Therefore, by virtue of the authority granted above, the Department of Public Works and Highways hereby designates and declares the R-1 Expressway, C-5 Link Expressway and the R-1 Extension Expressway Sections of the Manila Cavite Toll Expressway to be LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed by the DPWH thru the Toll Regulatory Board (TRB).

In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after consultation with the TRB and in coordination with the Philippine National Police (PNP), to close all illegal openings along the said Limited Access Highways/Facilities. In this connection, the NCR is instructed to organize its own enforcement and security group for the purpose of assuring the continued closure of the right-of-way fences and the implementation of the rules and regulations that may be imposed by the DPWH thru the TRB.

This Order shall take effect immediately.[4]cralaw

DPWH Department Order No. 123 (DO 123), issued on 18 July 2001, allowed motorcycles with engine displacement of at least 400 cubic centimeters to operate inside toll roads and limited access highways. DO 123 reads in part:

SUBJECT: Revised Rules and Regulations

Governing Limited Access Highways

By virtue of the authority granted the Secretary of Public Works and Highways under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following revised rules and regulations governing limited access highways arc hereby promulgated for the guidance of all concerned:

1. Administrative Order No. 1 dated February 19, 1968, issued by the Secretary of the then Department of Public Works and Communications, is hereby amended by deleting the word "motorcycles" mentioned in Section 3(h) thereof. Therefore, motorcycles are hereby allowed to operate inside the toll roads and limited access highways, subject to the following:

a. Motorcycles shall have an engine displacement of at least 400 cubic centimeters (cc) provided that:

x x x x[5]cralaw

In the 8 June 2006 Decision, we held that DO 74 and DO 215 are void because DPWH has no authority to declare certain! expressways as limited access facilities. Executive Order No. 546 (EO 546), creating a Ministry of Public Works (now DPWH) and a Ministry of Transportation and Communications (now Department of Transportation and Communications or DOTC), devolved to the DOTC the authority to regulate limited access highways. We also declared DO 123 void for want of authority of the DPWH to promulgate it. Furthermore, since the TRB cannot derive its power from the DPWH to issue regulations governing limited access facilities, the Revised Rules and Regulations on Limited Access Facilities issued by the TRB is likewise void.

On the other hand, we found AO 1 valid and constitutional. We held that AO 1, issued on 19 February 1968 by the Secretary of the Department of Public Works and Communications, was authorized under Section 3 of RA 2000. We found that AO 1 does not impose unreasonable restrictions. AO 1 does not infringe upon petitioners' right to travel but merely bars motorcycles, bicycles, tricycles, pedicabs, and any non-motorized vehicles as the mode of traveling along limited access highways.

We find the issues raised by petitioners and respondents in their motions for reconsideration already considered and discussed extensively in the assailed Decision. We find no compelling reason to reconsider the assailed Decision.

We now resolve petitioners' motion for clarification. Petitioners assert that:

x x x [T]here is an unfortunate and mistaken use of "toll ways" in discussing the safely (or not), of driving motorcycles as if it were synonymous with "limited access facilities/highways" as contemplated in Republic Act (RA) No. 2000. The Honorable Court, in the alternative that it should sustain the validity of the ban in motorcycles under Section 3, AO 1, must clarify that a toll way is not automatically a "limited access facility/highway." Section 2 of RA 2000 requires the DOTC to, first and foremost, do a positive act or to, first, designate which roads are deemed "limited access facilities/highways" and that the prior consent of affected provinces, cities, municipalities are secured. That is, precisely, why respondents came up with its questioned Department Orders, i.e. to designate, for example, the portions of the expressways from Tabang to Alabang as "limited access facilities." There is, under the present facts and situation, NO such act of prior "designation" done by DOTC and there is NO showing, then or now, that the required prior consent of affected provinces, cities, municipalities had been or were ever secured.

x x x [B]ased on petitioners' reading of the tenor of the Decision, there is NO existing limited access facility/highway so far declared/designated by the Department of Transportation & Communications (DOTC). Considering, therefore, that the ban against motorcycles apply only to limited access highways/facilities, then, consequently, the ban is inexistent and this, too, must be clarified in the Honorable Court's Decision to avoid any further confusion and shall generate further and unnecessary litigation between the petitioners and respondents, and/or petitioners and the PNCC, for example. (Emphasis in the original)

Section 2 of RA 2000 defines limited access facility as "a highway or street especially designed for through traffic, and over, from, or to which owners or occupants of abutting land or other persons have no right or easement or only a limited right or easement of access, light, air, or view by reason of the fact that their property abuts upon such limited access facility or for any other reason. Such highways or streets may be parkways, from which trucks, busses, and other commercial vehicles shall be excluded; or they may be free ways open to use by all customary forms of street and highway traffic." This definition serves as the guideline for the Department of Public Works and Communications in establishing limited access facilities. Under Section 3 of RA 2000, the Department of Public Works and Communications is authorized to "plan, designate, establish, regulate, vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is of the opinion that traffic conditions, present or future, will justify such special facilities x x x."

Under EO 546, it is the DOTC, not the DPWH, which has authority to designate, regulate, restrict, or prohibit access to limited access facilities. The DOTC has the authority to administer and enforce all laws, rules and regulations relative to transportation. Clearly, it is the DOTC which has expertise to determine whether traffic conditions justify the establishment of limited access facilities.

The DOTC has yet to declare which expressways or toll ways are limited access facilities. Expressways or tollways are not automatically considered as limited access highways. The DOTC must henceforth designate what expressways or tollways, or portons thereof, are limited access facilities.

WHEREFORE, we DENY the motions for reconsideration.

(The Justices maintained their respective positions. Justice Dante O. Tinga filed a dissenting opinion to the present Resolution)

(Corona, J., on leave)

Very truly yours,

(Sgd.) MA. LUISA D. VILLARAMA
Clerk of Court

G.R. No. 158793 (James Mirasol Richard Santiago, et al., petitioners v. The Department of Public Works and Highways and the Toll Regulatory Board, Through the Office of the Solicitor General, respondents.)

Promulgated:

Aug 29 2006

_____________________

x ------------------------------------------------------------------------------------------------------------------------- x

SEPARATE OPINION

TlNGA, J.:

In their Motion for Partial Reconsideration dated July 7, 2006, respondents Department of Public Works and Highways (DPWH) and Toll Regulatory Board (TRB), through the Solicitor General, assert that the DPWH is the government agency tasked with the regulation of highways, including the authority to prohibit motorcycle access inside limited access facilities.

The Solicitor General vigorously argues that the establishment of limited access facilities is a public works function that properly pertains to the DPWH. The declaration of certain tollways as limited access facilities pursuant to the questioned department orders are functions inherently and essentially adjunct to the DPWH's jurisdiction as the engineering and construction arm of the government.

The view advanced by the Solicitor General finds support in the Dissenting Opinion which, if I may emphasize yet again, upholds the authority of the DPWH to establish limited access facilities and to regulate the use thereof pursuant to the Limited Access Highway Act, the Administrative Code of 1987 and long-standing practice.

This would have been an opportune time to rectify what, I submit, were erroneous conclusions in the ponencia. Regrettably, the ponente opts to unceremoniously brush aside the Solicitor General's meritorious arguments and, in response to petitioners' Motion for Clarification, chooses instead merely to state that the Department of Transportation and Communication (DOTC) has yet to declare which expressways or tollways are limited access facilities and to direct the latter to designate what expressways or tollways, or portions thereof, are limited access facilities.

The attempt to clarify is demonstrative of the havoc wreaked by the ponencia when it chose to disregard the consistent and long-standing practice vesting in the DPWH jurisdiction to establish and regulate limited access facilities. We now have a hiatus in the regulation of limited access facilities in that while we upheld the validity and constitutionality of Administrative Order No. 1 which prohibits motorcycles on limited access facilities, we are now effectively allowing these motorcycles free rein in what in the past were limited access facilities designated by the DPWH because the ponencia is saying that there is no such limited access facilities yet.

For these reasons, I vote to grant the Motion for Partial Reconsideration filed by respondents DPWH and TRB through the Solicitor General.



Endnotes:

[1]cralaw Approved on 22 June 1957.

[2]cralaw Rollo, pp. 89-90

[3]cralaw Id. at 91.

[4]cralaw Id. at 96.

[5]cralaw Id. at 242.


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