[ G.R. NO. 71169. August 25, 1989 ] 257 Phil. 730
EN BANC
[ G.R. NO. 71169. August 25, 1989 ]
JOSE D. SANGALANG AND LUTGARDA D. SANGALANG, PETITIONERS, FELIX C. GASTON AND DOLORES R. GASTON, JOSE V. BRIONES AND ALICIA R. BRIONES, AND BEL-AIR VILLAGE ASSOCIATION, INC., INTERVENORS-PETITIONERS, VS. INTERMEDIATE APPELLATE COURT AND AYALA CORPORATION, RESPONDENTS. [G.R. NO. 74376. AUGUST 25, 1989] BEL-AIR VILLAGE ASSOCIATION, INC., PETITIONER, VS. THE INTERMEDIATE APPELLATE COURT, ROSARIO DE JESUS TENORIO, AND CECILIA GONZALVES, RESPONDENTS. [G.R. NO. 76394. AUGUST 25, 1989] BEL-AIR VILLAGE ASSOCIATION, INC., PETITIONER, VS. THE COURT OF APPEALS, AND EDUARDO AND BUENA ROMUALDEZ, RESPONDENTS. [G.R. NO. 78182. AUGUST 25, 1989] BEL-AIR VILLAGE ASSOCIATION, INC., PETITIONER, VS. COURT OF APPEALS, DOLORES FILLEY AND J. ROMERO & ASSOCIATES, RESPONDENTS. [G.R. NO. 82281. AUGUST25, 1989] BEL-AIR VILLAGE ASSOCIATION, INC., PETITIONER, VS. COURT OF APPEALS, VIOLETA MONCAL, AND MAJAL DEVELOPMENT CORPORATION, RESPONDENTS. [G.R. NO. 60727. AUGUST 25, 1989] NEMESIO I. YABUT, MUNICIPAL MAYOR OF MAKATI, ARTURO R. GABUNA, SECRETARY TO THE MAYOR FOR ADMINISTRATION, MAKATI; JOSEFO S. LINGAD, ACTING MUNICIPAL ENGINEER; NELSON ERASGA OF THE MUNICIPAL ENGINEER’S OFFICE, MAKATI; AND RUPERTO ACLE; STATION COMMANDER, SOUTHERN POLICE DISTRICT, MAKATI, PETITIONERS, VS. THE COURT OF APPEALS AND BEL-AIR VILLAGE ASSOCIATION, INC., RESPONDENTS. D E C I S I O N
SARMIENTO, J.:
I
Before the Court are: (1) two motions for reconsideration (G.R. No. 71169) of our Decision, promulgated on December 22, 1988, the first one having been filed by Atty. J. Cezar Sangco on behalf of the spouses Jose and Lutgarda Sangalang, and the second, by Atty. Raul Sison, counsel for Bel-Air Village Association (BAVA); and (2 ) a motion for reconsideration and/or motion for clarification filed by Atty. Richard Funk (G.R. Nos. 74376, 76394, 78182, and 82281) of the said Decision.
The motion for reconsideration (G.R. No. 71169), filed by the Sangalangs, is anchored on two grounds: (1) that contrary to our decision, Jupiter Street is for the exclusive use of Bel-Air Village residents; and (b) that the Ayala Corporation did contrive to acquire membership at the Bel-Air Village Association (BAVA) purposely to bargain for access to Jupiter Street by the general public. Subsequently, BAVA informed the Court that it was adopting the Sangalangs’ motion for reconsideration. The motion for reconsideration (in G.R. Nos. 74376, 76394, 78182, and 82281) raises more or less the same questions and asks furthermore that we delete the award of damages granted by the Court of Appeals.
The Court: (1) DENIES the motions filed by both the Sangalangs and BAVA with finality, no new arguments having been presented to warrant reconsideration, and (2) DENIES Atty. Richard Funk’s own motion for the same reason, with the further word that the grant of attorney’s fees has been deemed to be just and proper under Article 2208, par. II, of the Civil Code.
II
The lone issue in G.R. No. 67027 is whether or not the Mayor of Makati could have validly opened Jupiter and Orbit Streets to vehicular traffic. The facts, as stated in the assailed decision of the respondent court, in CA-G.R. No. 11803-SP, entitled, “Bel-Air Village Association, Inc., Petitioner, vs. Hon. Celso I. Magsino, Presiding Judge of the Court of First Instance of Rizal, Branch XX, Pasig, Metro Manila; Mayor Nemesio Yabut, Municipal Mayor of Makati, Metro Manila, Arturo R, Gabuna, Secretary to the Mayor for Administration, Makati, Josefo S. Lingad, Acting Municipal Engineer, Nelson Erasga, of the Municipal Engineer ’s Office, Makati; and Ruperto Acle, Station Commander, Southern Police District, Makati, Respondents,” are as follows:
In its chronological sequence, the petition avers as follows: On October 24, 1979, petitioner instituted a petition for prohibition and damages with preliminary injunction with the respondent Court docketed as Civil Case No. 34948. On October 25, 1979, the respondent court issued an order directing respondents to answer and denying the issuance of a temporary restraining order. Petitioner filed an urgent motion for reconsideration of the denial of its prayer for the issuance of a temporary restraining order, adding as new ground the continuation of the commission of acts of dispossession by the respondents. The said urgent motion was denied.
On November 6, 1979, the parties were directed to submit their affidavits and counter-affidavits as well as memoranda as basis for resolving the application for preliminary injunction. In due time, the parties complied. On December 11, 1979, respondents filed their answer to the petition.
On March 4, 1980, the respondent Court denied the application for preliminary injunction. On November 14, 1980, an order was issued denying the motion for reconsideration.
It is alleged by petitioner that by its orders of March 4, 1980 and November 14, 1980. the respondent Court has unlawfully deprived the petitioner of its right to due process to which it is entitled under the Constitution, and that respondents’ acts are tantamount to grave abuse of discretion and in excess of jurisdiction.
In their comment, respondents allege that prior to January, 1977, upon the instructions of respondent Mayor Nemesio T. Yabut of Makati, Metro Manila, studies were made by the other respondents on the feasibility of opening streets in Bel-Air Village calculated to alleviate traffic congestions along the public streets adjacent to Bel-Air Village. The studies revealed that the subdivision plan of Bei-Air Village was approved by the Court of First Instance of Rizal on condition, among others, that its major thoroughfares connecting to public streets and highways shall be opened to public traffic. Accordingly, it was deemed necessary by the Municipality of Makati in the interest of the general public to open to traffic Amapola, Mercedes, Zodiac, Jupiter, Neptune, Orbit and Paseo de Roxas streets. On January 28, 1977, a meeting was held between representatives of the Municipality of Makati and petitioner.
At this meeting, respondents claim that the representatives of petitioner, particularly Rufino R. Santos, president of petitioner, had agreed to the opening of Bel-Air Village streets. Regarding Jupiter Street, the Municipality opened it because public welfare demanded its opening which allegation the petitioner never questioned. With respect to Orbit Street, whose opening was temporarily suspended until the flood control project from Buendia Extension up to the mouth of the Pasig River, was about to be completed, it was opened only after another meeting attended by Rufino R. Santos who agreed to the opening of the street from J.P. Rizal Avenue up to Imelda Avenue and later up to Jupiter Street, subject to certain conditions.
To bolster their side, respondents cite: specifically, Section 44 of the Land Registration Act No. 496, as amended, the deeds of donation of Jupiter and Orbit streets executed by and between the Ayala Corporation and the petitioner, Presidential Decrees No. 957, Sees. 22 and 29 thereof, and No. 1216, Sec. 2 thereof, and Municipal Ordinance No. 17 of the Municipal Government of Makati, Metro Manila, as amended by Resolution No. 139, dated November 21,1948, and contend that the opening of the two (2) streets was demanded by public necessity and in the exercise of its police powers, and, ultimately on the argument that petitioner has not shown a clear legal right to the writ of preliminary injunction.
With leave of court, petitioner filed a reply to the respondents comment, They assert that the streets mentioned in the comment, other than Jupiter and Orbit streets, have always been kept open voluntarily by the Association, that Rufino R. Santos, president of petitioner, has never agreed on the opening of Jupiter and Orbit streets, and that the Torrens titles covering these streets do not contain similar conditions as those titles for the other street lots.
Petitioner relies on its ownership of the streets of which it should not (be) deprived without due process of law, and without just compensation, Article 539 of the Civil Code, an existing Ordinance of the Metro Manila Commission No. 2, Sec. 14 thereof, and the concurrence of ail the requisites for the issuance of a writ of preliminary injunction.[1]
The Court of Appeals found that the certificates of title (Transfer Certificates of Titles Nos. S-76020, S-76021, S-76022, S-76024, and S-76055, for Jupiter Street, and 206824, for Orbit Street) do not contain the restrictions imposed by Section 44 of Act No. 496, now, Section 50 of Presidential Decree No. 1529, for which reason, and so the Appellate Court held, the Mayor of Makati did not have the legal right to open them up to traffic.
In Sangalang Rollo Intermediate Appellate Court,[2] we held that Ayala Corporation, the former owner of the Bel-Air subdivision, can not be held responsible for the opening of Jupiter Street, among other things, because it was the Mayor of Makati who ordered such an opening.[3] The issue herein, as we indicated, is whether or not the Mayor could legally have done it. With respect, specifically, to Jupiter Street, Sangalang avers:
Among other things, there is a recognition under both Ordinances Nos. 81 and 81-01 that Jupiter Street lies as the boundary between Bel-Air Village and Ayala Corporation’s commercial section. And since 1957, it had been considered as a boundary — not as a part of either the residential or commercial zones of Ayala Corporation’s real estate development projects. Thus, the Bel-Air Village Association’s articles of incorporation state that Bel-Air Village is “bounded on the NE., from Amapola St., to de los Santos Ave., by Estrella St., on the SE., from Estrella St., to Pedestrian Lane, by E. De los Santos Ave., on the SW., from Pedestrian Lane to Reposo St., by Jupiter Street..” Hence, it cannot be said to have been “for the exclusive benefit” of Bel-Air Village residents.[4]
Sangalang also had occasion to invoke Ortigas & Co., Limited Partnership v. Feati Bank and Trust Co.[5] We reiterate Ortigas herein:
x x x
x x x
x x x
With regard to the contention that said resolution cannot nullify the contractual obligations assumed by the defendant-appellee — referring to the restrictions incorporated in the deeds of sale and later in the corresponding Transfer Certificates of Title issued to defendant-appellee — it should be stressed, that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it has to be reconciled with the legitimate exercise of police power, i.e., “the power to prescribe regulations to promote the health, morals, peace, education, good order or safety and general welfare of the people.” Invariably described as “the most essential, insistent, and illimitable of powers” and “in a sense, the greatest and most powerful attribute of government,” the exercise of the power may be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there having been a denial of due process or a violation of any other applicable constitutional guarantee. As this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company vs. City of Davao, et al., police power “is elastic and must be responsive to various social conditions; it is not confined within narrow circumscriptions of precedents resting on past condition; it must follow the legal progress of a democratic way of life.” We were even more emphatic in Vda. de Genuino vs. The Court of Agrarian Relations, et al., when We declared: ‘We do not see why public welfare when clashing with the individual right to property should not be made to prevail through the state’s exercise of its police power."
Resolution No. 27, s-1960 declaring the western part of Highway 54, now E. de los Santos Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone, was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to safeguard or promote the health, safety, peace, good order and general welfare of the people in the locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos. 5 and 6 are located. The lots themselves not only front the highway; industrial and commercial complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its route. Having been expressly granted the power to adopt zoning and subdivision ordinances or regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not perfectly, justified under the circumstances, in passing the subject resolution.[6]
The Bel-Air Village Association can not therefore rightfully complain that His Honor, the Mayor of Makati, in opening up Jupiter Street, had acted arbitrarily.
In connection with Orbit Street, the Court reaches the same conclusion. We repudiate, therefore, that part of the assailed decision of the Court of Appeals insofar as it held that the condition imposed by Section 44, of Act No. 496, now Section 50, of Presidential Decree No. 1529,[7] that “no portion of any street or passageway . . . shall be closed or otherwise disposed of by the registered owner without approval of the court of first instance (being first) had,"[8] does not apply for lack of an annotation of such a condition on the certificate of title (Transfer Certificate of Title No. 206824). To begin with, Transfer Certificate of Title No. 206824 does contain the annotation in question:
. . . subject to such of the encumbrances mentioned in Section 39 of said Act as may be subsisting, and the condition that the above lots are subject to the conditions imposed by Republic Act 440.[9]
Furthermore, the very Deed of Donation executed by the Ayala Corporation[10] covering Jupiter and Orbit Streets, amongst others, and so we found in Sangalang, effectively required both passageways open to the general public. We quote:
The alleged undertaking, finally, by Ayala in the deed of donation (over Jupiter Street) to leave Jupiter Street for the private use of Bel-Air residents is belied by the very provisions of the deed. We quote:
x x x
x x x
x x x
“IV. That the offer made by the DONOR had been accepted by the DONEE subject to the condition that the property will be used as a street for the use of the members of the DONEE, their families, personnel, guests, domestic help and, under certain reasonable conditions and restrictions, by the general public, and in the event that said lots or parts thereof cease to be used as such, ownership thereof shall automatically revert to the DONOR. The DONEE shall always have Reposo Street, Makati Avenue, and Paseo de Roxas open for the use of the general public. It is also understood that the DONOR SHALL continue the maintenance of the street at its expense for a period of three years from date hereof. (Deed of Donation, p. 6, Exh. 7).
x x x
x x x
x x x
The donation on the contrary, gave the general public equal right to it.[11]
As regards Orbit Street, it was stipulated:
That the property donated shall be used and maintained as “private roads or streets for the use of the members of the Donee, their families, personnel, domestic helps and under certain reasonable conditions and restrictions, by the general public; In the event that the properties covered by this donation are no longer used as such, the same shall automatically revert to the Donor; and That the Donee shall always have Reposo Street open for the use of the general public and shall transfer its present gate barrier located in the intersection of Orbit and Jupiter to the southern boundary of street Lot 8 of the Plan (LRC) Psd-77820.“12
As we asserted in Sangalang, the opening of Jupiter Street was warranted by the demands of the common good, in terms of traffic decongestion and public convenience.[13] We also uphold the opening of Orbit Street for the same rationale.
There is no merit in BAVA’s claims that the demolition of the gates at Orbit and Jupiter Streets amounts to deprivation of property without due process of law or expropriation without just compensation.[14] There is no taking of property involved here. The act of the Mayor now challenged is, rather, in the concept of police power. In the case of Philippine Association of Service Exporters, Inc. v. Drilon,[15] we said:
The concept of police power is well-established in this jurisdiction. It has been defined as the “state authority to enact legislation that may interfere with personal liberty or property in order to promote the general welfare.” As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-comprehensive embrace.
“Its scope, ever-expanding to meet the exigencies of the times, even to anticipate the future where it could be done provides enough room for an efficient and flexible response to conditions and circumstances thus assuring the greatest benefits.”
It finds no specific Constitutional grant for the plain reason that it does not owe its origin to the Charter. Along with the taxing power and eminent domain, it is inborn in the very fact of statehood and sovereignty. It is a fundamental attribute of government that has enabled it to perform the most vital functions of governance. Marshall, to whom the expression has been credited, refers to it succinctly as the plenary power of the State “to govern its citizens.”
“The police power of the State . . . is a power coextensive with self-protection, and it is not inaptly termed the ’law of overwhelming necessity.’ It may be said to be that inherent and plenary power in the State which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society.”
It constitutes an implied limitation on the Bill of Rights. According to Fernando, it is “rooted in the conception that men in organizing the state and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary measures calculated to ensure communal peace, safety, good order, and welfare.” Significantly, the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and liberties “Even liberty itself, the greatest of all rights, is not unrestricted license to act accordingly to one’s will.” It is subject to the far more overriding demands and requirements of the greater number.[16]
Unlike the power of eminent domain, police power is exercised without provision for just compensation:
Art. 436. When any property is condemned or seized by competent authority in the interest of health, safety or security, the owner thereof shall not be entitled to compensation, unless he can show that such condemnation or seizure is unjustified.[17]
However, it may not be done arbitrarily or unreasonably.[18] But the burden of showing that it is unjustified lies on the aggrieved party.[19]
Our considered opinion is that BAVA has failed to show that the opening up of Orbit Street was unjustified, or that the Mayor acted unreasonably. The fact that it has led to the loss of privacy of BAVA residents is no argument against the Municipality’s effort to ease vehicular traffic in Makati. Certainly, the duty of a local executive is to take care of the needs of the greater number, in many cases, at the expense of the minority.
The next question is whether or not the Mayor, by himself, is vested with the power to order the demolition so questioned, without the backing of a proper ordinance. On this score, the Mayor submitted in evidence Municipal Ordinance No. 17, as amended by Resolution No. 139, dated November 21, 1948,[20] requiring a Mayor’s permit to erect construction anywhere in Makati. The respondent court rejected, however, the Mayor’s reliance on the Ordinance. We quote:
Respondents also invoke Municipal Ordinance No. 17, as amended by Resolution No. 139, dated November 21,1948, requiring a Mayor’s permit before any construction of any kind shall be built, erected or constructed in any place in the Municipality, and empowering the corresponding authorities especially the Mayor to remove and demolish any such illegal construction. For a long time the gates and fences removed by agents of respondents have been in the sites where they were removed. We fail to comprehend why the respondents did not invoke the Ordinance much earlier. They cannot pretend ignorance of a condition or situation which was never concealed from respondents and their agents. At any rate, the Torrens titles of these street lots which bore no restrictions whatsoever was authority for its owner to close them.[21]
Quite to the contrary, the Court is convinced that Ordinance No. 17 is a valid justification for the questioned act of the Mayor. The fact that some time had elapsed before the Mayor acted, can not render the ordinance uneforceable or void. At any rate, the gate, the destruction of which opened Orbit Street, has the character of a public nuisance,[22] in the sense that it “hinders or impairs the use of property,"[23] which the Civil Code disposes of as follows:
Art. 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local ordinance; or
(2) A civil action; or
(3) Abatement, without judicial proceedings.[24]
In The Homeowners Associations of El Deposito, Barrio Corazon de Jesus, San Juan, Rizal v. Lood,[25] we held:
At any rate, the decisive point is that independently of the said ordinance, petitioners’ constructions which have been duly found to be public nuisances per se (without provision for accumulation or disposal of waste matters and constructed without building permits contiguously to and therefore liable to pollute one of the main water pipelines which supplies potable water to the Greater Manila area) may be abated without judicial proceedings under our Civil Code.[26]
In addition, under Article 701 of the Code, summary abatement may be carried out by the Mayor himself.
Although estoppel is a valid defense against abatement of nuisance,[27] judicially or summarily, the Mayor is not being condemned for estoppel here, but, rather, for inaction. Under, however, the Civil Code:
Art. 698. Lapse of time cannot legalize any nuisance, whether public or private.[28]
Other than BAVA’s claims that the opening of Orbit Street led to the loss of privacy of BAVA residents, there is no showing that the Mayor, in carrying out the demolition of the Orbit gate, had acted in disregard of due process or, as the respondent court would put it, with a “show of arrogance."[29] As we said, the gate in question was a nuisance, which could have been legally abated by summary means. The fact that it was accomplished summarily does not lend to it a “show of arrogance” because, precisely, a summary method is allowed by law. In any event, there is a showing that the Mayor notified BAVA that Orbit (and Jupiter) Streets would be opened up.[30] The Court finds that such a notice is compliance enough with due process.[31]
What has been left unsaid is that the nation today is witnessing profound changes occurring in its midst. A decade ago, we were a people of forty or so million. Today, the number is knocking on sixty million. We are reaping the cost that population explosion carries with it. Housing the homeless has been one of the first casualties. And so has been the transport system. Giving the homeless homes and bringing them there safely is a formidable burden and the task of the hour. Parochial concerns can not be an impediment to the greater needs of the greatest number.
WHEREFORE, the petition in G.R. No. 60727 is GRANTED; the motions for reconsiderations in G.R. Nos. 71169, 74376, 76394, 78182, and 82281 are DENIED with FINALITY.
IT IS SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Bidin, Cortes, Medialdea, and Regalado, JJ., concur.
Feliciano, Padilla and Grino-Aquino, JJ., took no part.