round 2 compiled (pimentel to nessia)

8/3/2019 Round 2 Compiled (Pimentel to Nessia)

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LocGov A2010PIMENTEL V AGUIRRE

G.R. 132988PANGANIBAN; July 19, 2000

MINI

NATUREPetition for certiorari and prohibition seeking to (1)annul Section 1 of Administrative Order (AO) 372,insofar as it requires local government units to reduce

their expenditures by 25% of their authorized regularappropriations for non-personal services; and (2) toenjoin respondents from implementing Section 4 ofthe order, which withholds a portion of their internalrevenue allotments.

FACTS

- 1997- President Ramos issued AO 3721 (pertinentportions included)-1998Preident Estrada amended section 4 reducing heamount withheld from LGUs to %% from 10%.- Petitioner contends that the President, in issuing AO372, was in effect exercising the power ofcontrol overLGUs. The Constitution vests in the President,however, only the power of general supervision overLGUs, consistent with the principle of local autonomy.Petitioner further argues that the directive to withhold

ten10% of their IRA is in contravention of Section 286of the Local Government Code and of Section 6,

1"ADMINISTRATIVE ORDER NO. 372

ADOPTION OF ECONOMY MEASURES IN GOVERNMENTFOR FY 1998WHEREAS, the current economic difficulties brought aboutby the peso depreciation requires continued prudence ingovernment fiscal management to maintain economicstability and sustain the country's growth momentum;WHEREAS, it is imperative that all government agenciesadopt cash management measures to matchexpenditures with available resources; NOW, THEREFORE,I, FIDEL V. RAMOS, President of the Republic of thePhilippines, by virtue of the powers vested in me by the

Constitution, do hereby order and direct:SECTION 1. All government departments and agencies,including state universities and colleges, government-owned and controlled corporations and local governmentsunits will identify and implement measures in FY 1998that will reduce total expenditures for the year by at least25% of authorized regular appropriations for non-personalservices items, along the following suggested areas:1. Continued implementation of the streamlining policyon organization and staffing by deferring action on thefollowing: a. Operationalization of new agencies;b. Expansion of organizational units and/or creation ofpositions; c. Filling of positions; and d. Hiring ofadditional/new consultants, contractual and casualpersonnel, regardless of funding source.2. Suspension of the following activities: a.Implementation of new capital/infrastructure projects,except those which have already been contracted out;b. Acquisition of new equipment and motor vehicles;c. All foreign travels of government personnel, exceptthose associated with scholarships and trainings fundedby grants; d. Attendance in conferences abroad wherethe cost is charged to the government except thoseclearly essential to Philippine commitments in theinternational field as may be determined by the Cabinet;e. Conduct of trainings/workshops/seminars, exceptthose conducted by government training institutions andagencies in the performance of their regular functions andthose that are funded by grants; f. Conduct of culturaland social celebrations and sports activities, except thoseassociated with the Philippine Centennial celebration andthose involving regular competitions/events; g. Grantof honoraria, except in cases where it constitutes the onlysource of compensation from government received by theperson concerned; h. Publications, mediaadvertisements and related items, except those required

Article X of the Constitution, providing for theautomatic release to each of these units its share inthe national internal revenue.-The solicitor general, on behalf of the respondents,claims on the other hand that AO 372 was issued toalleviate the "economic difficulties brought about bythe peso devaluation" and constituted merely anexercise of the President's power of supervision overLGUs. It allegedly does not violate local fiscalautonomy, because it merely directs local

governments to identify measures that will reducetheir total expenditures for non-personal services byat least 25 percent. Likewise, the withholding of 10percent of the LGUs IRA does not violate the statutoryprohibition on the imposition of any lien or holdbackon their revenue shares, because such withholding is"temporary in nature pending the assessment andevaluation by the Development CoordinationCommittee of the emerging fiscal situation."

ISSUES(a) WON Section 1 of AO 372, insofar as it "directs"LGUs to reduce their expenditures by 25 percent;(b) WON Section 4 of the same issuance, whichwithholds 10 percent of their internal revenue

allotments:are valid exercises of the President's power of generalsupervision over local governments.

HELDPreliminary discussion (definition of crucial concepts):(a) the scope of the President's power of generalsupervision over local governments-Section 4 of Article X of the Constitution confines thePresident's power over local governments to one ofgeneral supervision.-(distinction between supervision an control) In Drilonv. Lim, the difference between control andsupervision was further delineated. Officers in controllay down the rules in the performance or

accomplishment of an act. If these rules are not

by law or those already being undertaken on a regularbasis; i. Grant of new/additional benefits to employees,except those expressly and specifically authorized by law;and j. Donations, contributions, grants and gifts,except those given by institutions to victims of calamities.3. Suspension of all tax expenditure subsidies to allGOCCs and LGUs4. Reduction in the volume of consumption of fuel, water,office supplies, electricity and other utilities5. Deferment of projects that are encountering significantimplementation problems6. Suspension of all realignment of funds and the use ofsavings and reservesSECTION 4. Pending the assessment and evaluation bythe Development Budget Coordinating Committee of theemerging fiscal situation, the amount equivalent to 10%of the internal revenue allotment to local governmentunits shall be withheld.

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LocGov A2010followed, they may, in their discretion, order the actundone or redone by their subordinates or evendecide to do it themselves. On the other hand,supervision does not cover such authority.Supervising officials merely see to it that the rules arefollowed, but they themselves do not lay down suchrules, nor do they have the discretion to modify orreplace them(b) the extent of the local governments' autonomy

-Hand in hand with the constitutional restraint on the

President's power over local governments is the statepolicy of ensuring local autonomy-(difference between autonomy and decentralization)-in Limbona v. Mangelin as follows:"Now, autonomy is either decentralization ofadministration or decentralization of power. There isdecentralization of administration when the centralgovernment delegates administrative powers topolitical subdivisions in order to broaden the base ofgovernment power and in the process to make localgovernments 'more responsive and accountable,' and'ensure their fullest development as self-reliantcommunities and make them more effective partnersin the pursuit of national development and socialprogress.' At the same time, it relieves the central

government of the burden of managing local affairsand enables it to concentrate on national concerns.

The President exercises 'general supervision' overthem, but only to 'ensure that local affairs areadministered according to law.' He has no control overtheir acts in the sense that he can substitute their

judgments with his own.Decentralization of power, on the other hand, involvesan abdication of political power in the favor of localgovernment units declared to be autonomous. In thatcase, the autonomous government is free to chart itsown destiny and shape its future with minimumintervention from central authorities. According to aconstitutional author, decentralization of poweramounts to 'self-immolation,' since in that event, the

autonomous government becomes accountable not tothe central authorities but to its constituency."

1. YES-Under existing law, local government units, inaddition to having administrative autonomy in theexercise of their functions, enjoy fiscal autonomy aswell. Fiscal autonomy means that local governmentshave the power to create their own sources of revenuein addition to their equitable share in the nationaltaxes released by the national government, as well asthe power to allocate their resources in accordancewith their own priorities.-Local fiscal autonomy does not however rule out anymanner of national government intervention by way of

supervision, in order to ensure that local programs,fiscal and otherwise, are consistent with national goals-However, under the Constitution, the formulation andthe implementation of such policies and programs are

subject to "consultations with the appropriate publicagencies, various private sectors, and localgovernment units." The President cannot do sounilaterally.-There are therefore several requisites before thePresident may interfere in local fiscal matters: (1) anunmanaged public sector deficit of the nationalgovernment; (2) consultations with the presidingofficers of the Senate and the House of Representatives and the presidents of the various

local leagues; and (3) the correspondingrecommendation of the secretaries of the Departmentof Finance, Interior and Local Government, and Budgetand Management.-Petitioner points out that respondents failed tocomply with these requisites before the issuance andthe implementation of AO 372. The solicitor generalinsists, however, that AO 372 is merely directory andhas been issued by the President consistent with hispower of supervision over local governments-While the wordings of Section 1 of AO 372 have arather commanding tone, and while we agree withpetitioner that the requirements of the LocalGovernment Code have not been satisfied, we areprepared to accept the solicitor general's assurance

that the directive to "identify and implementmeasures x x x that will reduce total expenditures xx x by at least 25% of authorized regularappropriation" is merely advisory in character, anddoes not constitute a mandatory or binding order thatinterferes with local autonomy.- the provision is merely an advisory to prevail uponlocal executives to recognize the need for fiscalrestraint in a period of economic difficulty. Indeed, allconcerned would do well to heed the President's callto unity, solidarity and teamwork to help alleviate thecrisis. It is understood, however, that no legalsanction may be imposed upon LGUs and theirofficials who do not follow such advice.

2. NO-A basic feature of local fiscal autonomy is theautomatic release of the shares of LGUs in thenational internal revenue. The Local Government Codespecifies further that the release shall be madedirectly to the LGU concerned within five (5) daysafter every quarter of the year and "shall not besubject to any lien or holdback that may be imposedby the national government for whatever purpose." Asa rule, the term "shall" is a word of command thatmust be given a compulsory meaning-Such withholding clearly contravenes the Constitutionand the law. Although temporary, it is equivalent to aholdback, which means "something held back orwithheld, often temporarily." Hence, the "temporary"

nature of the retention by the national governmentdoes not matter. Any retention is prohibited.

Nature of Power of Eminent Domain asExercised by LGUs

BELUSO v MUNICIPALITY OF PANAY(CAPIZ)

498 SCRA 113

Aug 7, 2006; AUSTRIA-MARTINEZKOOKY

NATUREPetition for review on certiorari

FACTS- The Belusos owned parcels of land covered by FreePatent, and which became the subject of ResolutionNo. 95-29 issued by the Sangguniang Bayan of theMunicipality of Panay on Nov 8, 1995. The Resolutionauthorized the municipal government through themayor to initiate expropriation proceedings.- The Belusos filed a Motion to Dismiss the petition forexpropriation, alleging that the taking is not for public

use but for the benefit of certain individuals; that it ispolitically motivated as they voted against theincumbent officials; and that some of the supposedbeneficiaries had not actually or freely signed thepetition. RTC denied the MTD and declared theexpropriation for public use and that the municipalityhad the lawful right to take the property uponpayment of just compensation.- RTC issued an order appointing three persons asCommissioners to ascertain the amount of justcompensation for the property. The Belusos filed amotion to hold the meeting of the commissioners inabeyance. This was denied by the RTC.- The Belusos filed a Petition for Certiorari with the CA,claiming that they were denied due process. They

subsequently filed a Memorandum where they arguedthat based on the Petition for Expropriation filed bythe Municipality, such expropriation was based only ona resolution and not an ordinance, contrary to Sec 19of RA 7160 (LGC), and that there was no valid anddefinite offer to buy the property as the price offeredwas very low. The CA dismissed the petition.

ISSUEWON the expropriation, exercised by means of aresolution and not ordinance as required by law, isvalid.(NOTE: even if the objection was belatedly raised bythe Belusos, the SC considered it since the fact uponwhich it is based is apparent from the petition for

expropriation itself.)

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LocGov A2010HELDNO.- A local government unit cannot authorize anexpropriation of private property through a mereresolution of its law making body. RA 7160 (LGC)expressly requires an ordinance for the purpose and aresolution will not suffice. As held in Municipality onParanaque v V.M. Realty Corp, xxx An ordinance is alaw, but a resolution is merely a declaration of thesentiment or opinion of a lawmaking body on a

specific matter. An ordinance possesses a general andpermanent character, but a resolution is temporary innature. Additionally, the two are enacted differently a third reading is necessary for an ordinance, but notfor a resolution, unless decided otherwise by amajority of all the Sanggunian members. If Congressintended to allow LGUs to exercise eminent domainthrough a mere resolution, it would have simplyadopted the language of the previous LocalGovernment Code. But Congress did not. Sec 192 ofRA 7160 requires that the local chief executive actpursuant to an ordinance. xxx- Eminent domain, which is the power of a sovereignstate to appropriate private property to particular usesto promote public welfare, is essentially lodged in the

legislature. While such power may be validlydelegated to local government units, other publicentities and public utilities, the exercise of such powerby the delegated entities is not absolute. In fact, thescope of delegated legislative power is narrower thanthat of the delegating authority and such entities mayexercise the power to expropriate private propertyonly when authorized by Congress and subjects to itscontrol and restraints imposed through the lawconferring the power or in other legislations. LGUs bythemselves have no inherent power of eminentdomain. The power of eminent domain delegated toan LGU is in reality not eminent ut inferior since itmust conform to the limits imposed by the delegation

2 Sec 19. Eminent Domain. A local government unitmay, through its chief executive and acting pursuant toan ordinance, exercise the power of eminent domain forpublic use, or purpose, or welfare for the benefit of thepoor and the landless, upon payment of justcompensation, pursuant to the provisions of theConstitution and pertinent laws: Provided, however, Thatthe power of eminent domain may not be exercisedunless a valid and definite offer has been previously madeto the owner, and such offer was not accepted: Provided,further, That the local government unit may immediatelytake the possession of the property upon the filing of theexpropriation proceedings and upon making a depositwith the proper court of at least fifteen percent (15%) ofthe fair market value of the property based on the currenttax declaration of the property to be expropriated:Provided, finally, That the amount to be paid for theexpropriated property shall be determined by the propercourt, based on the fair market value at the time of thetaking of the property.

and thus partakes only of a share in eminent domain. The national legislature is still the principal of theLGUs and the latter cannot go against the principalswill or modify the same.- Several requisites must concur before an LGU canexercise the power of eminent domain:1. An ordinance is enacted by the local legislativecouncil authorizing the local chief executive, in behalfof the local government unit, to exercise the power ofeminent domain or pursue expropriation proceedings

over a particular private property.2. The power of eminent domain is exercised forpublic use, purpose or welfare, or for the benefit of thepoor and the landless.3. There is payment of just compensation, as requiredunder Sec 9, Art III of the Constitution, and otherpertinent laws.4. A valid and definite offer has been previously madeto the owner of the property sought to beexpropriated, but said offer was not accepted.

Limitations

LAGCAO V LABRA440 SCRA 279

CORONA; October 13, 2004AIDA

NATUREPetition for review

FACTS- In 1964, Cebu province donated 210 lots to CebuCity. One of these lots was Lot 1029 found in CapitolHills.- The Lagcaos purchased this lot in 1965 and paymentwas to be made by installments. However, later thatyear, the lots were reverted back to Cebu province,including Lot 1029.

- Cebu province tried to annul the sale of Lot 1029 tothe Lagcaos which prompted the petitioners to file anaction for specific performance in the Cebu CFI.- In 1986, the CFI ruled (later affirmed by the CA) inthe Lagcaos favor and ordered Cebu City to executethe final deed of sale. A TCT was later issued in favorof the Lagcaos and Crispina Lagcao.- When the Lagcaos tried to take possession of theproperty, they saw that it was filled with squatters. Anejectment proceeding was instituted by the Lagcaoswhich was granted by the MTCC and affirmed by theRTC, the latter issuing a writ of execution and an orderof demolition.- The MTCC suspended the demolition for 120 days inresponse to a request by Cebu City Mayor Garcia

because the city was still looking for a relocation site.- However during the suspension period, the Cebu CitySangguniang Panlungsod passed a resolution which

identified Lot 1029 as a socialized housing sitepursuant to RA 7279.- On July 2000, the Cebu City SP passed an ordinance(Ordinance 1843) which authorized the initiation ofexpropriation proceedings for Lot 1029.- The Lagcaos filed an action seeking to declareOrdinance 1843 unconstitutional which was dismissedby the TC.Petitioners Claim:- Ordinance 1843 is unconstitutional insofar as it

sanctions the expropriation of their property for thepurpose of selling it to the squatters. This is violativeof the concept of public use as it will only benefit ahandful of people.

ISSUEWON the intended expropriation of Lot 1029 throughOrdinance 1843 is unconstitutional

HELDYES, Ordinance 1843 is unconstitutional on the groundthat it is violative of the Lagcaos right to due processRatio Local government units do not possess unbridledauthority to exercise their power of eminent domain inseeking solutions to this problem. There are two legal

provisions which limit the exercise of this power: (1)no person shall be deprived of life, liberty, or propertywithout due process of law, nor shall any person bedenied the equal protection of the laws; and (2)private property shall not be taken for public usewithout just compensation.

Reasoning- The due process clause cannot be trampled uponeach time an ordinance orders the expropriation of aprivate individuals property. The courts cannot evenadopt a hands-off policy simply because public use orpublic purpose is invoked by an ordinance, or justcompensation has been fixed and determined.- Government may not capriciously or arbitrarily

choose which private property should be expropriated.In this case, there was no showing at all whypetitioners property was singled out for expropriationby the city ordinance or what necessity impelled theparticular choice or selection. Ordinance No. 1843stated no reason for the choice of petitioners propertyas the site of a socialized housing project.- RA 7279 is the law that governs the localexpropriation of property for purposes of urban landreform and housing.- Sec. 9 provides for the order of acquiring lands forsocialized housing:(a) Those owned by the Government or any of itssubdivisions, instrumentalities, or agencies, includinggovernment-owned or controlled corporations and

their subsidiaries;(b) Alienable lands of the public domain;(c) Unregistered or abandoned and idle lands;

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LocGov A2010(d) Those within the declared Areas or PriorityDevelopment, Zonal Improvement Program sites, andSlum Improvement and Resettlement Program siteswhich have not yet been acquired;(e) Bagong Lipunan Improvement of Sites andServices or BLISS which have not yet been acquired;and(f) Privately-owned lands- Sec. 10 states that that expropriation shall beresorted to only when other modes of acquisition have

been exhausted.- In the case of Estate or Heirs of the Late Ex-Justice

JBL. Reyes vs. City of Manila, we ruled that the above-quoted provisions are strict limitations on the exerciseof the power of eminent domain by local governmentunits, especially with respect to (1) the order ofpriority in acquiring land for socialized housing and (2)the resort to expropriation proceedings as a means toacquiring it.- Nothing in the records indicates that the City of Cebucomplied strictly with Sections 9 and 10 of RA 7279.Ordinance No. 1843 sought to expropriate petitionersproperty without any attempt to first acquire the landslisted in (a) to (e) of Section 9. Cebu City failed toestablish that the other modes of acquisition in

Section 10 of RA 7279 were first exhausted. Therewas no evidence of a valid and definite offer to buypetitioners property as required by Section 19 of RA7160.- For an ordinance to be valid, it must not only bewithin the corporate powers of the city or municipalityto enact but must also be passed according to theprocedure prescribed by law. It must be in accordancewith certain well-established basic principles of asubstantive nature. These principles require that anordinance (1) must not contravene the Constitution orany statute (2) must not be unfair or oppressive (3)must not be partial or discriminatory (4) must notprohibit but may regulate trade (5) must be generaland consistent with public policy, and (6) must not be

unreasonable.Disposition Petition granted.

Requisites

JESUS IS LORD CHRISTIAN SCHOOLFOUNDATION, INC. V MUNICIPALITY

(NOW CITY) OF PASIG

,

466 SCRA235, 253AUGUST 9, 2005; CALLEJO, SR.LORA

FACTS- The Municipality of Pasig needed an access roadfrom E. R. Santos Street, a municipal road near thePasig Public Market, to Barangay Sto. Tomas Bukid,Pasig.- The residents in the area needed the road for waterand electrical outlets.- The municipality then decided to acquire 51 squaremeters out of the 1,791-square meter property of the

Ching Cuancos which is abutting E. R. Santos Street.- The Sangguniang Bayan of Pasig approved anOrdinance authorizing the municipal mayor to initiateexpropriation proceedings to acquire the said propertyand appropriate the fund therefor.- The ordinance stated that the property owners werenotified of the municipalitys intent to purchase theproperty for public use as an access road but theyrejected the offer.- The municipality filed a complaint, against the ChingCuancos for the expropriation of the property underSection 19 of the Local Government Code.- The plaintiff alleged therein that it notified thedefendants, by letter, of its intention to construct anaccess road on a portion of the property but they

refused to sell the same portion.- The plaintiff appended to the complaint a photocopyof the letter addressed to defendant Lorenzo ChingCuanco.- The plaintiff deposited with the RTC 15% of themarket value of the property based on the latest taxdeclaration covering the property. On plaintiffsmotion, the RTC issued a writ of possession over theproperty sought to be expropriated.- The plaintiff caused the annotation of a notice of lispendens at the dorsal portion of TCT No. PT-92579under the name of the Jesus Is Lord Christian SchoolFoundation, Incorporated (JILCSFI) which hadpurchased the property.- Plaintiff constructed therein a cemented road with

called Damayan Street.- JILCSFI filed a motion for leave to intervene asdefendant-in-intervention, which motion the RTCgranted.- During trial, Rolando Togonon, the plaintiffsmessenger, testified on direct examination that onFebruary 23, 1993, he served a letter of Engr. JoseReyes, the Technical Assistant to the Mayor onInfrastructure, to Lorenzo Ching Cuanco at h is store.- The plaintiff offered in evidence a photocopy of theletter of Engr. Jose Reyes addressed to Lorenzo ChingCuanco to prove that the plaintiff made a definite andvalid offer to acquire the property to the co-owners.However, the RTC rejected the same letter for being amere photocopy.

- RTC: plaintiff as having a lawful right to take theproperty in question for purposes for which the sameis expropriated. As gleaned from the declaration inOrdinance No. 21, there was substantial compliance

with the definite and valid offer requirement ofSection 19 of R.A. No. 7160, and that the expropriatedportion is the most convenient access to the interior ofSto. Tomas Bukid.- CA: affirmed the order of the RTC. Plaintiffsubstantially complied with Section 19 of R.A. No.7160, particularly the requirement that a valid anddefinite offer must be made to the owner. The letterof Engr. Reyes, inviting Lorenzo Ching Cuanco to aconference to discuss with him the road project and

the price of the lot, was a substantial compliance withthe valid and definite offer requirement under saidSection 19.- CA noted that there was also constructive notice tothe defendants of the expropriation proceedings sincea notice of lis pendens was annotated at the dorsalportion of TCT No. PT-92579. It upheld the publicnecessity for the subject property based on thefindings of the trial court that the portion of theproperty sought to be expropriated appears to be, notonly the most convenient access to the interior of Sto.

Tomas Bukid, but also an easy path for vehiclesentering the area, particularly fire trucks.- CA denied MR: It was not precluded fromconsider ing the photocopy of the letter,

notwithstanding that the same was excluded by thetrial court, since the fact of its existence was dulyestablished by corroborative evidence.

ISSUES1. WON the respondent complied with therequirement, under Section 19 of the LocalGovernment Code, of a valid and definite offer toacquire the property prior to the filing of the complaint2. WON property which is already intended to be usedfor public purposes may still be expropriated by therespondent3. WON the requisites for an easement for right-of-wayunder Articles 649 to 657 of the New Civil Code maybe dispensed with

HELDRight of Eminent Domain- usually understood to be an ultimate right of thesovereign power to appropriate any property within itsterritorial sovereignty for a public purpose.- an indispensable attribute of sovereignty; appertainsto every independent government without thenecessity for constitutional recognition.- provisions found in modern constitutions of civilizedcountries relating to the taking of property for thepublic use do not by implication grant the power tothe government, but limit the power which would,otherwise, be without limit.- Our Constitution provides that private property shall

not be taken for public use without justcompensation. Furthermore, the due process andequal protection clauses act as additional safeguards

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LocGov A2010against the arbitrary exercise of this governmentalpower.- exercise of the right of eminent domain, whetherdirectly by the State or by its authorized agents, isnecessarily in derogation of private rights.- Consequently, when the sovereign delegates thepower to a political unit or agency, a strictconstruction will be given against the agencyasserting the power. The authority to condemn is tobe strictly construed in favor of the owner and against

the condemnor.- When the power is granted, the extent to which itmay be exercised is limited to the express terms orclear implication of the statute in which the grant iscontained.- the respondent, which is the condemnor, has theburden of proving all the essentials necessary to showthe right of condemnation. It has the burden of proofto establish that it has complied with all therequirements provided by law for the valid exercise ofthe power of eminent domain.- The grant of the power of eminent domain to localgovernment units is grounded on Section 19 of R.A.No. 7160.

Requisites for the valid exercise of the power ofeminent domain by a local government unit:1. An ordinance is enacted by the local legislativecouncil authorizing the local chief executive, in behalfof the local government unit, to exercise the power ofeminent domain or pursue expropriation proceedingsover a particular private property.2. The power of eminent domain is exercised forpublic use, purpose or welfare, or for the benefit of thepoor and the landless.3. There is payment of just compensation, asrequired under Section 9, Article III of the Constitution,and other pertinent laws.4. A valid and definite offer has been previouslymade to the owner of the property sought to be

expropriated, but said offer was not accepted.

1. NO.- The respondent was burdened to prove themandatory requirement of a valid and definite offer(Art 35 IRR of LGC) to the owner of the property beforefiling its complaint and the rejection thereof by thelatter. It is incumbent upon the condemnor to exhaustall reasonable efforts to obtain the land it desires byagreement. Failure to prove compliance with themandatory requirement will result in the dismissal ofthe complaint.- An offer is a unilateral proposition which one partymakes to the other for the celebration of a contract. Itcreates a power of acceptance permitting the offeree,

by accepting the offer, to transform the offerorspromise into a contractual obligation.- The offer must be complete, indicating with sufficientclearness the kind of contract intended and definitely

stating the essential conditions of the proposedcontract. An offer would require, among other things,a clear certainty on both the object and the cause orconsideration of the envisioned contract.- The purpose of the requirement of a valid anddefinite offer to be first made to the owner is toencourage settlements and voluntary acquisition ofproperty needed for public purposes in order to avoidthe expense and delay of a court action.- A reasonable offer in good faith, not merely

perfunctory or pro forma offer, to acquire the propertyfor a reasonable price must be made to the owner orhis privy. A single bona fide offer that is rejected bythe owner will suffice.- The expropriating authority is burdened to makeknown its definite and valid offer to all the owners ofthe property.- However, it has a right to rely on what appears in thecertificate of title covering the land to beexpropriated. Hence, it is required to make its offeronly to the registered owners of the property. Afterall, it is well-settled that persons dealing with propertycovered by a Torrens certificate of title are notrequired to go beyond what appears on its face.- The respondent failed to prove that before it filed its

complaint, it made a written definite and valid offer toacquire the property for public use as an access road.

The only evidence adduced by the respondent toprove its compliance with Section 19 of the LocalGovernment Code is the photocopy of the letterpurportedly bearing the signature of Engr. Jose Reyes,to only one of the co-owners, Lorenzo Ching Cuanco.- The respondent offered the letter only to prove itsdesire or intent to acquire the property for a right-of-way. The document was not offered to prove that therespondent made a definite and valid offer to acquirethe property. Moreover, the RTC rejected thedocument because the respondent failed to adduce inevidence the original copy thereof. The respondent,likewise, failed to adduce evidence that copies of the

letter were sent to and received by all the co-ownersof the property, namely, Lorenzo Ching Cuanco, VictorChing Cuanco and Ernesto Kho.- Togonon testified that he merely gave the letter to alady, whom he failed to identify. He stated that thelady went inside the store of Lorenzo Ching Cuanco,and later gave the letter back to him bearing thesignature purportedly of one Luz Bernarte. However,

Togonon admitted, on cross-examination, that he didnot see Bernarte affixing her signature on the letter.- Even if the letter was, indeed, received by the co-owners, the letter is not a valid and definite offer topurchase a specific portion of the property for a pricecertain. It is merely an invitation for only one of theco-owners, Lorenzo Ching Cuanco, to a conference to

discuss the project and the price that may be mutuallyacceptable to both parties.- There is no legal and factual basis to the CAs rulingthat the annotation of a notice of lis pendens at the

dorsal portion of petitioners TCT No. PT-92579 is asubstantial compliance with the requisite offer.- A notice of lis pendens is a notice to the whole worldof the pendency of an action involving the title to orpossession of real property and a warning that thosewho acquire an interest in the property do so at theirown risk and that they gamble on the result of thelitigation over it.- Moreover, the lis pendens was annotated at thedorsal portion of the title only on November 26, 1993,

long after the complaint had been filed in the RTCagainst the Ching Cuancos.- Neither is the declaration in one of the whereasclauses of the ordinance that the property ownerswere already notified by the municipality of the intentto purchase the same for public use as a municipalroad, a substantial compliance with the requirementof a valid and definite offer under Section 19 of R.A.No. 7160. Presumably, the Sangguniang Bayan reliedon the erroneous premise that the letter of Engr.Reyes reached the co-owners of the property.- In the absence of competent evidence that, indeed,the respondent made a definite and valid offer to allthe co-owners of the property, aside from the letter ofEngr. Reyes, the declaration in the ordinance is not a

compliance with Section 19 of R.A. No. 7160.- The Ching Cuancos specifically denied suchallegation for want of sufficient knowledge to form abelief as to its correctness.

2. YES. Court rejected the contention of the petitionerthat its property can no longer be expropriated by therespondent because it is intended for the constructionof a place for religious worship and a school for itsmembers.- Manosca v. CA citing Sea v. Manila Railroad Co.:

The taking to be valid must be for public use. Therewas a time when it was felt that a literal meaningshould be attached to such a requirement. Whateverproject is undertaken must be for the public to enjoy,

as in the case of streets or parks. Otherwise,expropriation is not allowable. It is not so any more.As long as the purpose of the taking is public, then thepower of eminent domain comes into play. As justnoted, the constitution in at least two cases, toremove any doubt, determines what is public use. Oneis the expropriation of lands to be subdivided intosmall lots for resale at cost to individuals. The other isthe transfer, through the exercise of this power, ofutilities and other private enterprise to thegovernment. It is accurate to state then that atpresent whatever may be beneficially employed forthe general welfare satisfies the requirements ofpublic use.

3. YES. The subject property is expropriated for thepurpose of constructing a road. The respondent is notmandated to comply with the essential requisites foran easement of right-of-way under the New Civil Code.

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LocGov A2010Case law has it that in the absence of legislativerestriction, the grantee of the power of eminentdomain may determine the location and route of theland to be taken unless such determination iscapricious and wantonly injurious.- Expropriation is justified so long as it is for the publicgood and there is genuine necessity of publiccharacter.- The respondent has demonstrated the necessity forconstructing a road from E. R. Santos Street to Sto.

Tomas Bukid. The witnesses, who were residents ofSto. Tomas Bukid, testified that although there wereother ways through which one can enter the vicinity,no vehicle, however, especially fire trucks, could enterthe area except through the newly constructedDamayan Street. This is more than sufficient toestablish that there is a genuine necessity for theconstruction of a road in the area. After all, absolutenecessity is not required, only reasonable andpractical necessity will suffice.- Nonetheless, the respondent failed to show thenecessity for constructing the road particularly in thepetitioners property and not elsewhere.- The whereas clause of the ordinance states that the51-square meter lot is the shortest and most suitable

access road to connect Sto. Tomas Bukid to E. R.Santos Street. The respondents complaint alsoalleged that the said portion of the petitioners lot hasbeen surveyed as the best possible ingress andegress. However, the respondent failed to adduce apreponderance of evidence to prove its claims.- There is no showing in the record that an ocularinspection was conducted during the trial. If, at all,the trial court conducted an ocular inspection of thesubject property during the trial, the petitioner wasnot notified thereof. The petitioner was, therefore,deprived of its right to due process. It bears stressingthat an ocular inspection is part of the trial asevidence is thereby received and the parties areentitled to be present at any stage of the trial.

Disposition Petition GRANTED.

LGU to Exercise Power Without Need of

Government Approval

BRGY MATICTIC VS. JUDGE ELBINIASAND SPS SERAPIO

148 SCRA 83ALAMPAY; FEBRUARY 27, 1987

MARGE

FACTS-Barrio Matictic filed with CFI Bulacan an action forinjunction against the Sps Serapio to enjoin the latter

from placing obstructions and closing the thePoblacion-Tomana-Canyakan barrio road and to allowplaintiff barrio to remove the obstructions and repairthe barrio road so as to enable convenient passagethrough it. Later, Barrio Matictic filed MTD on theground that an expropriation proceeding, not aninjunction, is the better remedy. Judge Geraldezgranted the motion.-However, a complaint for Eminent Domain involvingthe same property was filed by the Municipality of

Norzagaray with the same court. The defendants filedMTD alleging lack of subject-matter jurisdiction, lack ofcause of action and plaintiff municipalitys lack ofcapacity to sue. Their principal contention is that theplaintiff municipality, in the absence of an approvalfrom the Office of the President, may not properly filethe subject expropriation case.-The municipality later filed an amended complaintalleging that it had obtained authority from the Officeof the President to institute expropriation proceedings.Defendants filed their MTD anew, arguing on plaintiff'slack of cause of action and asserting that asubsequent authorization would not cure the

jurisdictional defect attaching to the plaintiff'scomplaint when the subject case was initially filed.

-The court ordered the plaintiff municipality to submitplans of the land to be expropriated, duly approved bythe Bureau of Lands. For failure to comply with thisorder, the case was dismissed for failure to prosecute.-Upon appeal, CA ordered CFI Bulacan to proceed withthe expropriation case pursuant to Rule 67.3 of theRules of Court. At this point however, the Norzagaraymayor displayed reluctance to prosecute the case. Infact, he requested the Municipal Council to withdrawthe expropriation proceedings. The Municipal Council,however, refused to accede to the wishes of themayor.-Brgy Matictic, chagrined and confronted by theattitude of its mayor, filed a Motion for Interventiongrounded on its averment that the result of the

expropriation case will greatly affect the social andeconomic development of the area. This motion wasnoted by CFI Bulacans Judge Elbinias.-Without taking any further action on the motion forintervention, Judge Elbinias issued an orderdismissing, without prejudice, the expropriation case,on the singular reason that at the time theexpropriation case was initially filed there was noshowing of any prior Presidential approval - arequisite that should have been first compliedwith, pursuant to Section 2245 of the RevisedAdministrative Code.-Plaintiff municipalitys MFR was denied. It no longerappealed.-Barangay Matictic filed this petition for certiorari and

mandamus, praying for the issuance of a writ ofmandamus to compel the lower court to allow andadmit the petitioner's complaint in intervention.

ISSUEWON mandamus lies.(WON the complaint in intervention should beadmitted)

HELD: NO-Proper party to appeal or seek a review of thedismissal of the expropriation proceedings would bethe Municipality of Norzagaray. Barrio Matictic, whichis a different political entity, and although a part and

parcel of the aforesaid municipality, has no legalpersonality to question the aforestated ordersbecause by itself, it may not continue theexpropriation case. Since the municipality did notappeal, the dismissal of the expropriation casebecame final and there is no more proceeding whereinBarangay Matictic may possibly intervene. Thedismissal of the expropriation case has no less theinherent effect of also dismissing the motion forintervention which is but the unavoidableconsequence.-Nothing is lost to the petitioner. If at all petitioner canrightfully establish that it is allowed by law to institutea separate and independent action of its own, thenthere would be no necessity for it to intervene in the

case initiated by the Municipality of Norzagaray whichis now apparently no longer interested in continuingthe expropriation proceedings. The dismissal of theexpropriation case was without prejudice. Themunicipality of Norzagaray, Bulacan can revive itsaction. There is no need for the proposed interventionof Barrio Matictic. What it may do is to urge themunicipality to file its case anew. If the Barangay hasobtained authority for itself to pursue the action ofeminent domain, then the more reason there is torefuse its intervention.Disposition Petition denied for lack of merit.

Necessity of Taking

MASIKIP V CITY OF PASIG479 SCRA 391

SANDOVAL-GUTIERREZ; JANUARY 23,2006

ANTON

NATUREPetition for review on certiorari assailing a decision ofthe CA.

FACTS

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LocGov A2010- Petitioner Lourdes Dela Paz Masikip (MASIKIP) is theregistered owner of a parcel of land located at Pag-Asa, Caniogan, Pasig City.- In a letter dated January 6, 1994, the City of Pasig(PASIG, then a municipality) notified MASIKIP of itsintention to expropriate a 1,500-sq. m portion of herproperty to be used for the "sports development andrecreational activities" of the residents of BarangayCaniogan. This was pursuant to an ordinance enactedby the then Sangguniang Bayan of Pasig.

- March 23, 1994: PASIG wrote MASIKIP another letter,but this time the purpose was allegedly "in line withthe program of the Municipal Government toprovide land opportunities to deserving poorsectors of our community."- MASIKIP sent a reply stating that the intendedexpropriation of her property is unconstitutional,invalid, and oppressive, as the area of her lot isneither sufficient nor suitable to "provide landopportunities to deserving poor sectors of ourcommunity."- PASIG reiterated that the purpose of theexpropriation of MASIKIPs property is "to providesports and recreational facilities to its poor residents."- February 21, 1995: PASIG filed with the trial court a

complaint for expropriation. MASIKIP filed a Motion toDismiss.- Trial court issued an Order denying the Motion toDismiss, on the ground that there is a genuinenecessity to expropriate the property for thesports and recreational activities of theresidents of Pasig. As to the issue of justcompensation, the trial court held that the same is tobe determined in accordance with the Revised Rulesof Court.

ISSUE(S)1. WON Motion to Dismiss was appropriate

responsive pleading.2. WON genuine necessity for expropriation was

established.

HELD1. YES.Reasoning The rule on expropriation was governedby Section 3, Rule 67 of the Revised Rules of Court:

SEC. 3. Defenses and objections. Within thetime specified in the summons, each defendant,in lieu of an answer, shall present in a singlemotion to dismiss or for other appropriate relief,all his objections and defenses to the right of theplaintiff to take his property for the use orpurpose specified in the complaint. All suchobjections and defenses not so presented arewaived. A copy of the motion shall be served on

the plaintiffs attorney of record and filed with thecourt with proof of service.

- The motion to dismiss contemplated in the aboveRule clearly constitutes the responsive pleading which

takes the place of an answer to the complaint forexpropriation. Such motion is the pleading that puts inissue the right of the plaintiff to expropriate thedefendants property for the use specified in thecomplaint. All that the law requires is that a copy ofthe said motion be served on plaintiffs attorney ofrecord. It is the court that at its convenience will setthe case for trial after the filing of the said pleading.

2. NO

Ratio The right to take private property for publicpurposes necessarily originates from "the necessity"and the taking must be limited to such necessity. Thevery foundation of the right to exercise eminentdomain is a genuine necessity and thatnecessity must be of a public character.Reasoning Records show that the Certification issuedby the Caniogan Barangay Council indicates that theintended beneficiary is the Melendres CompoundHomeowners Association, a private, non-profitorganization, not the residents of Caniogan. It can begleaned that the members of the said Association aredesirous of having their own private playground andrecreational facility. MASIKIPs lot is the nearestvacant space available. The purpose is, therefore, not

clearly and categorically public.- There is already an established sports developmentand recreational activity center at Rainforest Park inPasig City, fully operational and being utilized by itsresidents, including those from Barangay Caniogan.Respondent does not dispute this. Evidently, there isno "genuine necessity" to justify the expropriation.- Unless the requisite of genuine necessity for theexpropriation of ones property is clearly established,it shall be the duty of the courts to protect the rightsof individuals to their private property.

ON LOCAL GOVERNMENT:- The power of eminent domain is lodged in thelegislative branch of the government. It delegates the

exercise thereof to local government units, otherpublic entities and public utility corporations, subjectonly to Constitutional limitations.- Local governments have no inherent power ofeminent domain and may exercise it only whenexpressly authorized by statute. Section 19 ofthe Local Government Code of 1991 (RA 7160)prescribes the delegation by Congress of thepower of eminent domain to local governmentunits and lays down the parameters for itsexercise.

SEC. 19. Eminent Domain. A local governmentunit may, through its chief executive and actingpursuant to an ordinance, exercise the power ofeminent domain for public use, purpose or

welfare for the benefit of the poor and thelandless, upon payment of just compensation,pursuant to the provisions of the Constitution andpertinent laws: Provided, however, That, the

power of eminent domain may not be exercisedunless a valid and definite offer has beenpreviously made to the owner and such offer wasnot accepted: Provided, further, That, the localgovernment unit may immediately takepossession of the property upon the filing ofexpropriation proceedings and upon making adeposit with the proper court of at least fifteenpercent (15%) of the fair market value of theproperty based on the current tax declaration of

the property to be expropriated: Provided, finally, That, the amount to be paid for expropriatedproperty shall be determined by the proper court,based on the fair market value at the time of thetaking of the property.

Disposition Petition for review is granted. Decision ofthe CA is reversed.

Just Compensation

EPZA V DULAY149 SCRA 305

GUTIERREZ, JR., J.; APRIL 29, 1987GERALD AZURA

NATUREPetition for certiorari and mandamus with preliminaryrestraining order against the CFI of Cebu

FACTS- The President of the Philippines issued ProclamationNo. 1811, reserving a parcel of land of the publicdomain in the City of Lapu-Lapu, Island of Mactan,Cebu for the establishment of an export processingzone by petitioner Export Processing Zone Authority.

The proclamation included 4 parcels of land owned

and registered in the name of the private respondent.EPZA offered to purchase the parcels of land from therespondent in acccordance with the valuation in Sec.92, PD 464, as amended. They failed to reach anagreement regarding the sale of the property.- The petitioner filed with the CFI of Cebu a complaintfor expropriation with a prayer for the issuance of awrit of possession, to expropriate the aforesaid parcelsof land pursuant to PD 66, as amended, whichempowers the petitioner to acquire by condemnationproceedings any property for the establishment ofexport processing zones. The respondent judge issueda writ of possession authorizing the petitioner to takeimmediate possession of the premises.- The respondent judge declared the petitioner as

having the lawful right to take the properties upon thepayment of just compensation to be determined as ofthe filing of the complaint. The judge also issued a 2nd

order, subject of this petition, appointing

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LocGov A2010commissioners to ascertain and report to the court the

just compensation for the properties sought to beexpropriated.- Peti tioner f iled an MFR and Objection toCommissioner's Report on the grounds that PD 1533has superseded Sections 5 to 8 of Rule 67 of the Rulesof Court on the ascertainment of just compensationthrough commissioners; and that the compensationmust not exceed the maximum amount set by P.D.No. 1533. The motion was denied. The petitioner filed

the present petition.- The petitioner maintains that under P.D. No. 1533,the basis of just compensation shall be the fair andcurrent market value declared by the owner of theproperty or as determined by the assessor, whicheveris lower. Therefore, there is no more need to appointcommissioners as prescribed by Rule 67 of theRevised Rules of Court and for said commissioners toconsider other highly variable factors in order todetermine just compensation.

ISSUE/S1. WON the exclusive and mandatory mode ofdetermining just compensation in PD 1533 is valid andconstitutional

HELD1. NORatio The method of ascertaining just compensationunder the aforecited decrees constitutesimpermissible encroachment on judicial prerogatives.It tends to render this Court inutile in a matter whichunder the Constitution is reserved to it for finaldetermination.Reasoning Although in an expropriation proceedingthe court technically would still have the power todetermine the just compensation for the property,following the applicable decrees, its task would berelegated to simply stating the lower value of theproperty as declared either by the owner or the

assessor. As a necessary consequence, it would beuseless for the court to appoint commissioners. Thestrict application of the decrees during theproceedings would be nothing short of a mereformality or charade as the court has only to choosebetween the valuation of the owner and that of theassessor, and its choice is always limited to the lowerof the two. The court cannot exercise its discretion orindependence in determining what is just or fair. Inthis particular case, the tax declarations presented bythe petitioner as basis for just compensation weremade by the city assessor long before martial law,when land was much cheaper and assessed values ofproperties were stated at a fraction of their truemarket value. The private respondent was not even

the owner of the properties at the time. To peg thevalue of the lots on the basis of documents which areout of date and at prices below the acquisition cost ofpresent owners would be arbitrary and confiscatory.

On just compensation: Just compensation meansthe value of the property at the time of the taking. Itmeans a fair and full equivalentfor the loss sustained.All the facts as to the condition of the property and itssurroundings, its improvements and capabilities,should be considered.Disposition PD 1533, which eliminates the court'sdiscretion to appoint commissioners pursuant to Rule67 of the Rules of Court, is unconstitutional and void.

The petition is DISMISSED.

No Need for DAR Authority

PROVINCE OF CAMARINES SUR V CA222 SCRA 173

QUIASON; MAY 17, 1993MONCH

FACTS- The Sangguniang Panlalawigan (SP) of the Provinceof Camarines Sur passed Resolution authorizing theProvincial Governor to expropriate propertycontiguous to the provincial capitol site, in order toestablish a pilot farm for non-food and non-traditionalagricultural crops and a housing project for provincialgovernment employees. Governor Villafuerte thenfiled 2 cases for expropriation against Ernesto andEfren San Joaquin before the RTC.- The San Joaquin moved to dismiss the case on theground of inadequacy of the price offered for theirproperty. It was denied by the RTC and granted theProvinces motion of issuance of rit of possession- The San Joaquins filed a petition before the CA to setaside such order. The Province claimed that it has theauthority to initiate the expropriation proceedingsunder Sections 4 and 7 of Local Government Code(B.P. Blg. 337) and that the expropriations are for apublic purpose. The Solicitor General, in its comment,stated that under Sec 9 of the LGC, there is no needfor approval by the Office of the President for theexercise of eminent domain by the SP. However, it isof the view that the Province must first secure theapproval of the Department of Agrarian Reform of theplan to expropriate the lands of petitioners for use asa housing project.- The CA set aside the order of the RTC and orderedthat the expropriation proceedings be suspended untilthe Province has obtained the approval of the DAR.

ISSUE/S1. WON the expropriation is for a public purpose2. WON there is a need for prior approval before theProvince can exercise the power of eminent domain

HELD1. YES

Ratio Modernly, there has been a shift from the literalto a broader interpretation of "public purpose" or"public use" for which the power of eminent domainmay be exercised. The old concept was that thecondemned property must actually be used by thegeneral public (e.g. roads, bridges, public plazas, etc.).Under the new concept, "public use" means publicadvantage, convenience or benefit, which tends tocontribute to the general welfare and the prosperity ofthe whole community.

ReasoningThe establishment of a pilot developmentcenter would inure to the direct benefit and advantageof the people of the Province of Camarines Sur. Onceoperational, the center would make available to thecommunity invaluable information and technology onagriculture, fishery and the cottage industry.Ultimately, the livelihood of the farmers, fishermenand craftsmen would be enhanced. The housingproject also satisfies the public purpose requirementof the Constitution

2. NOReasoning It is true that have no inherent power ofeminent domain and can exercise it only whenexpressly authorized by the legislature. It is also true

that in delegating the power to expropriate, thelegislature may retain certain control or imposecertain restraints on the exercise thereof by the localgovernments. However, no such restrictions arepresent in this case. The CA relies on Sec 65 of theComprehensive Agrarian Reform Law, which reads:

Sec. 65. Conversion of Lands. After the lapse of five(5) years frm its award, when the land ceases to beeconomically feasible and sound for, agriculturalpurposes, or the locality has become urbanized andthe land will have a greater economic value forresidential, commercial or industrial purposes, theDAR, upon application of the beneficiary or thelandowner, with due notice to the affected parties,

and subject to existing laws, may authorize thereclassification or conversion of the land and itsdisposition: Provided, That the beneficiary shall havefully paid his obligation.- The opening, adverbial phrase of the provision sendssignals that it applies to lands previously placed underthe agrarian reform program as it speaks of "the lapseof five (5) years from its award." The rules onconversion of agricultural lands found in Section 4 (k)and 5 (1) of Executive Order No. 129-A, Series of1987, cannot be the source of the authority of theDepartment of Agrarian Reform to determine thesuitability of a parcel of agricultural land for thepurpose to which it would be devoted by theexpropriating authority. While those rules vest on the

Department of Agrarian Reform the exclusiveauthority to approve or disapprove conversions ofagricultural lands for residential, commercial orindustrial uses, such authority is limited to the

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LocGov A2010applications for reclassification submitted by the landowners or tenant beneficiaries.

Ordinance or Law Necessary

MUNICIPALITY OF PARAAQUE V. V.M.REALTY CORP

G.R. No. 127820

PANGANIBAN; July 20, 1998AJANG

NATUREPetition for review on certiorari

FACTS- Municipality of Paranaque filed a complaint forexpropriation against V.M. Realty Corporation overtwo parcels of land located in Eakas, San DionisioParanaque. Allegedly, it was for the purpose ofalleviating the living condit ions of theunderprivileged by providing homes for the homelessthrough a socialized housing project. RTC authorized

the petitioner to take possession of the subjectproperty. V.M. Realty filed an aswer containing anaffirmative defense and counterclaim alleging thatthe main complaint failed to state a cause ofaction because it was filed pursuant to aresolution and not to an ordinance as requiredby the Local Government Code and the cause ofaction, if any, was barred by a prior judgment or res

judicata. Thus, the trial court issued a resolutionnullifying its first order and dismissed the case.

ISSUES1. WON a resolution duly approved by the municipalcouncil has the same force and effect of an ordinanceand will not deprive an expropriation case of a valid

cause of action.2. The principle of res judicata as a ground fordismissal of case is not applicable when public interestis primarily involved

HELD:1. NOA resolution is different from an ordinance.Ratio The right of the municipality of Paranaque toexercise the power of eminent domain is not disputed.However, such right may be exercised only pursuantto an Ordinance (Sec. 19, R.A. No. 7160). In theinstant case, there is no such ordinance passed by theMunicipal Council of Paraaque enabling theMunicipality, thru its Chief Executive, to exercise the

power of eminent domain. The complaint, therefore,states no cause of action.- A local government unit (LGU), like the Municipalityof Paraaque, cannot authorize an expropriation of

private property through a mere resolution of itslawmaking body. The Local Government Codeexpressly and clearly requires an ordinance or a locallaw for the purpose. A resolution that merelyexpresses the sentiment or opinion of the MunicipalCouncil will not suffice. On the other hand, theprinciple of res judicata does not bar subsequentproceedings for the expropriation of the sameproperty when all the legal requirements for its validexercise are complied with.

Reasoning Sec. 19 of the LGC provides that,Eminent Domain. A local government unit may,through its chief executive and acting pursuant to anordinance, exercise the power of eminent domain forpublic use, or purpose, or welfare for the benefit of thepoor and the landless, upon payment of justcompensation, pursuant to the provisions of theConstitution and pertinent laws Municipality ofParanaque contends that a resolution approved by themunicipal council for the purpose of initiating anexpropriation case substantially complies with therequirements of the law because the termsordinance and resolution are synonymous for thepurpose of bestowing authority on the localgovernment unit through its chief executive to initiate

the expropriation proceedings in court in the exerciseof the power of eminent domain. It seeks to bolsterthis contention by citing Article 36, Rule VI of theRules and Regulations Implementing the LocalGovernment Code, which provides: If the LGU fails toacquire a private property for public use, purpose, orwelfare through purchase, the LGU may expropriatesaid property through a resolution of the Sanggunianauthorizing its chief executive to initiate expropriationproceedings. But the court disagrees.- The following essential requisites must concur beforean LGU can exercise the power of eminent domain:1. An ordinance is enacted by the locallegislative council authorizing the local chiefexecutive, in behalf of the LGU, to exercise the power

of eminent domain or pursue expropriationproceedings over a particular private property.2. The power of eminent domain is exercised forpublic use, purpose or welfare, or for the benefit of thepoor and the landless.3. There is payment of just compensation, asrequired under Section 9, Article III of the Constitution,and other pertinent laws.4. A valid and definite offer has been previouslymade to the owner of the property sought to beexpropriated, but said offer was not accepted.- In the case at bar, the local chief executive sought toexercise the power of eminent domain pursuant to aresolution of the municipal council. Thus, there wasno compliance with the first requisite that the mayor

be authorized through an ordinance.- The Court is not convinced by V.M. Realtysinsistence that the terms resolution and ordinanceare synonymous. A municipal ordinance is different

from a resolution. An ordinance is a law, but aresolution is merely a declaration of the sentiment oropinion of a lawmaking body on a specific matter. Anordinance possesses a general and permanentcharacter, but a resolution is temporary in nature.Additionally, the two are enacted differently -- a thirdreading is necessary for an ordinance, but not for aresolution, unless decided otherwise by a majority ofall the Sanggunian members.- If Congress intended to allow LGUs to exercise

eminent domain through a mere resolution, it wouldhave simply adopted the language of the previousLocal Government Code. But Congress did not. In aclear divergence from the previous Local GovernmentCode, Section 19 of RA 7160 categorically requiresthat the local chief executive act pursuant to anordinance.

Foreshore Lands

CHAVEZ V PEA, AMARIG.R. NO. 133250

CARPIO; MAY 6, 2003

REANNATUREMotion for ReconsiderationFACTSSCs decision on July 9, 2002 is summarized asfollows:[a] The 157.84 hectares of reclaimed lands comprisingthe Freedom Islands, now covered by certificates oftitle in the name of PEA, are alienable lands of thepublic domain. PEA may lease these lands to privatecorporations but may not sell or transfer ownership ofthese lands to private corporations. PEA may only sellthese lands to Philippine citizens, subject to theownership limitations in the 1987 Consti and existing

laws.[b] The 592.15 hectares of submerged areas of ManilaBay remain inalienable natural resources of the publicdomain until classified as alienable or disposable landsopen to disposition and declared no longer needed forpublic service. Govt can make such classification anddeclaration only after PEA has reclaimed thesesubmerged areas. Only then can these lands qualifyas agricultural lands of the public domain, which arethe only natural resources the govt can alienate. Intheir present state, the 592.15 hectares of submergedareas are inalienable and outside the commerce ofman.[c] Since the Amended JVA seeks to transfer to AMARI,a private corporation, ownership of 77.34 hectares of

the Freedom Islands, such transfer is void for beingcontrary to Sec 3, Art. XII of 1987 Consti whichprohibits private corporations from acquiring any kindof alienable land of the public domain.

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LocGov A2010[d] Since the Amended JVA also seeks to transfer toAMARI ownership of 290.156 hectares of stillsubmerged areas of Manila Bay, such transfer is voidfor being contrary to Sec 2, Art. XII of 1987 Constiwhich prohibits the alienation of natural resourcesother than agricultural lands of the public domain. PEAmay reclaim these submerged areas. Thereafter, thegovt can classify the reclaimed lands as alienable ordisposable, and further declare them no longerneeded for public service. Still, the transfer of such

reclaimed alienable lands of the public domain toAMARI will be void in view of Sec. 3, Art. XII of1987Constit which prohibits private corporations fromacquiring any kind of alienable land of the publicdomain

ISSUES1 WON the Amended JVA is unconstitutional2 WON the Decision should be made to applyprospectively, not retroactively to cover the Amended

JVA

HELD1 YES- Clearly, the Amended JVA violates glaringly Sections

2 and 3, Art. XII of 1987 Consti. Under A409 of CC,contracts whose "object or purpose is contrary to law,"or whose "object is outside the commerce of men,"are "inexistent and void from the beginning." TheCourt must perform its duty to defend and uphold theConsti, and thus declares the Amended JVA null andvoid ab initio.

2 NO- Amari argues that the existence of a statute orexecutive order prior to its being adjudged void is anoperative fact to which legal consequences areattached, citing De Agbayani v. PNB. Amari alsoasserts that a new doctrine of the Court cannotoperate retroactively if it impairs vested rights. Amari

maintains that the new doctrine embodied in theDecision cannot apply retroactively on those whorelied on the old doctrine in good faith, citing SpsBenzonan v. CA- Amaris reliance on De Agbayani and SpousesBenzonan is misplaced. These cases would apply if theprevailing law or doctrine at the time of the signing ofthe Amended JVA was that a private corporation couldacquire alienable lands of the public domain, and theDecision annulled the law or reversed this doctrine.Obviously, this is not the case here.- The prevailing doctrine before, during and after thesigning of Amended JVA is that private corporationscannot hold, except by lease, alienable lands of thepublic domain. This is one of 2 main reasons why the

Decision annulled the Amended JVA. The other mainreason is that submerged areas of Manila Bay, beingpart of the sea, are inalienable and beyond thecommerce of man, a doctrine that has remained

immutable since the Spanish Law on Waters of 1886.Clearly, the Decision merely reiterates, and does notoverrule, any existing judicial doctrine.- Even on the characterization of foreshore landsreclaimed by the government, the Decision does notoverrule existing law or doctrine. Since the adoption ofthe Regalian doctrine in this jurisdiction, the sea andits foreshore areas have always been part of thepublic domain. And since the enactment of Act No.1654 on May 18, 1907 until the effectivity of 1973

Consti, statutory law never allowed foreshore landsreclaimed by the government to be sold to privatecorporations. The 1973 and 1987 Constitutionenshrined and expanded the ban to include anyalienable land of the public domain.- There are, of course, SC decisions which, whilerecognizing a violation of the law or Constitution, holdthat the sale or transfer of the land may no longer beinvalidated because of "weighty considerations ofequity and social justice. The invalidation of the saleor transfer may also be superfluous if the purpose ofthe statutory or constitutional ban has been achieved.But none of these cases apply to Amari.- Thus, SC has ruled consistently that where a Filipinocitizen sells land to an alien who later sells the land to

a Filipino, the invalidity of the first transfer iscorrected by the subsequent sale to a citizen.Similarly, where the alien who buys the landsubsequently acquires Phil. citizenship, the sale isvalidated since the purpose of the constitutional banto limit land ownership to Filipinos has been achieved.In short, the law disregards the constitutionaldisqualification of the buyer to hold land if the land issubsequently transferred to a qualified party, or thebuyer himself becomes a qualified party. In the instantcase, however, Amari has not transferred the FreedomIslands, or any portion of it, to any qualified party. Infact, Amari admits that title to the Freedom Islandsstill remains with PEA.- The Court has also ruled consistently that a sale or

transfer of the land may no longer be questionedunder the principle of res judicata, provided the reqtsfor res judicata are present. Under this principle, thecourts and the parties are bound by a prior finaldecision, otherwise therell be no end to litigation. AsSC ruled in Toledo-Banaga v. CA "once a judgementhas become final and executory, it can no longer bedisturbed no matter how erroneous it may be." In theinstant case, there is no prior final decisionadjudicating the Freedom Islands to Amari.Disposition Motions for Reconsideration withoutmerit, and hereby DENIED with FINALITY

Jurisdiction to Order Closure

CABRERA V. CA195 SCRA 314

CRUZ; March 18, 1991JAVI

FACTS1969- Provincial Board of Catanduanes adoptedResolution No. 158:RESOLVED, as it is hereby resolved, to close the oldroad leading to the new Capitol Building of thisprovince to traffic effective October 31, 1969, and togive to the owners of the properties traversed by the

new road equal area as per survey by the HighwayDistrict Engineer's office from the old road adjacent tothe respective remaining portion of their properties.

The province thus conveyed portions of the closedroad to those affected by the resolution, in exchangefor their own properties on which was laid a newconcrete road leading to the Capitol Building.

The portions of the old road fronting petitioners housewere plated to vegetables and converted into apiggery farmPetitioner filed a complaint with the CFi ofCatanduanes for Restoration of Public Road and/orAbatement of Nuisance, Annulment of Resolutions andDocuments with Damages., alleging that the landfronting his house was a public road owned y theProvince of Catanduanes in its governmental capacityand therefore beyond the commerce of man. He saidResolution No. 158 ad the deeds of exchange wereinvalid, as was the closure of the northern portion ofthe road.Both the CFI and the CA upheld Resolution 158.CA said that Pursuant to Republic Act No. 5185,municipal authorities can close, subject to theapproval or direction of the Provincial Board,thoroughfares under Section 2246 of the RevisedAdministrative Code. Although in this case the roadwas not closed by the municipality of Catanduanes butby the provincial board of Catanduanes, the closure,nevertheless, is valid since it was ordered by theapproving authority itself. However, while it could doso, the provincial government of Catanduanes couldclose the road only if the persons prejudiced therebywere indemnified, Section 2246 of the RevisedAdministrative Code being very explicit on this.

petitioner insists that Sec. 2246 is not applicablebecause Resolution No. 158 is not an order for theclosure of the road in question but an authority tobarter or exchange it with private properties. Hemaintains that the public road was owned by theprovince in its governmental capacity and, without aprior order of closure, could not be the subject of abarter. Control over public roads, he insists, is withCongress and not with the provincial board

ISSUESWON the provincial board has authority to close theroad and use it or convey it for other purposes

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LocGov A2010HELD

YES- The authority of the provincial board to close thatroad and use or convey it for other purposes is derivedfrom the following provisions of Republic Act No. 5185in relation to Section 2246 of the RevisedAdministrative Code:R.A. No. 5185, Section 11 (II) (a):II. The following actions by municipal officials ormunicipal councils, as provided for in the pertinent

sections of the Revised Administrative Code shall takeeffect without the need of approval or direction fromany official of the national government: Provided, Thatsuch actions shall be subject to approval or directionby the Provincial Board:(a) Authority to close thoroughfare under Section2246;xxx xxx xxxSec. 2246.Authority to close thoroughfare. With theprior authorization of the Department Head, amunicipal council may close any municipal road,street, alley, park, or square; but no such way or placeaforesaid or any part thereof, shall be closed withoutindemnifying any person prejudiced thereby.Property thus withdrawn from public servitude may be

used or conveyed for any purpose for which other realproperty belonging to the municipality might belawfully used or conveyed.- also, this authority is inferable from the grant by thenational legislature of the funds to the Province ofCatanduanes for the construction of provincial roads.Dispositive CA decision affirmed

Freedom Parks

BAYAN V ERMITAGR 169838

AZCUNA; APRIL 25, 2006BRI

FACTS-Bayan, et al: citizens and taxpayers; their rights asorganizations and individuals were violated when theirrally (Oct 6, 2005) was violently dispersed bypolicemen implementing BP 880 (Public Assembly Actof 1985.)-Jess del Prado, et al: 26 individual petitioners; theywere injured, arrested and detained when a peacefulmass action (Sep 26, 2005) was preempted andviolently dispersed by the police. Also, on Oct 5, 2005,a group they participated in marched to Malacaangto protest issuances of the Palace which, they claim,put the country under an "undeclared" martial rule,and the protest was likewise dispersed violently andmany among them were arrested and sufferedinjuries.

-Kilusang Mayo Uno (KMU), et al: they conductpeaceful mass actions and that their rights asorganizations and those of their individual membersas citizens, specifically the right to peaceful assembly,are affected by BP 880 and the policy of "CalibratedPreemptive Response" (CPR) being followed toimplement it. On Oct 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridgebut police blocked them along C.M. Recto and LepantoStreets and forcibly dispersed them, causing injuries

to several of their members. Further, on Oct 6, 2005, amulti-sectoral rally which KMU also co-sponsored wasscheduled to proceed along Espaa in front of UST andgoing towards Mendiola bridge. Police officers blockedthem along Morayta Street and prevented them fromproceeding further. They were then forcibly dispersed,causing injuries on one of them. 3 other rallyists werearrested.-All petitioners assail BP 880 as well as the policy ofCPR. They seek to stop violent dispersals of ralliesunder the "no permit, no rally" policy and the CPRpolicy recently announced.[SEE ORIG FOR BP 880 AND CPR. I WILL ONLYINCLUDE HERE THE PART ABOUT FREEDOMPARKS]

ISSUES1. WON BP 880 is constitutional2. WON CPR is constitutional and legal.

HELD1. YES.Reasoning BP 880 is not an absolute ban of publicassemblies but a restriction that simply regulates thetime, place and manner of the assemblies. This wasadverted to in Osmea v. Comelec, where the Courtreferred to it as a "content-neutral" regulation of thetime, place, and manner of holding public assemblies.A fair and impartial reading of BP 880 thus readilyshows that it refers to all kinds of public assemblies

that would use public places. The reference to "lawfulcause" does not make it content-based becauseassemblies really have to be for lawful causes,otherwise they would not be "peaceable" and entitledto protection. Neither are the words "opinion,""protesting" and "influencing" in the definition ofpublic assembly content based, since they can refer toany subject. The words "petitioning the governmentfor redress of grievances" come from the wording ofthe Constitution, so its use cannot be avoided. Finally,maximum tolerance is for the protection and benefitof all rallyists and is independent of the content of theexpressions in the rally.Furthermore, the permit can only be denied on theground of clear and present danger to public order,

public safety, public convenience, public morals orpublic health. This is a recognized exception to theexercise of the right even under the Universal

Declaration of Human Rights and the InternationalCovenant on Civil and Political Rights.

The law is very clear and is nowhere vague in itsprovisions. "Public" does not have to be defined. Itsordinary meaning is well-known. Not every expressionof opinion is a public assembly. The law refers to"rally, demonstration, march, parade, procession orany other form of mass or concerted action held in apublic place." So it does not cover any and all kinds ofgatherings.

Neither is the law overbroad. It regulates the exerciseof the right to peaceful assembly and petition only tothe extent needed to avoid a clear and present dangerof the substantive evils Congress has the right toprevent.

There is, likewise, no prior restraint, since the contentof the speech is not relevant to the regulation.As to the delegation of powers to the mayor, the lawprovides a precise and sufficient standard - the clearand present danger test stated in Sec. 6a. Thereference to "imminent and grave danger of asubstantive evil" in Sec. 6c substantially means thesame thing and is not an inconsistent standard.Finally, for those who cannot wait, Section 15 ofthe law provides for an alternative forum

through the creation of freedom parks where noprior permit is needed for peaceful assemblyand petition at any time:Sec. 15. Freedom parks. Every city andmunicipality in the country shall within sixmonths after the effectivity of this Act establishor designate at least one suitable "freedompark" or mall in their respective jurisdictionswhich, as far as practicable, shall be centrallylocated within the poblacion wheredemonstrations and meetings may be held atany time without the need of any prior permit.In the cities and municipalities of MetropolitanManila, the respective mayors shall establishthe freedom parks within the period of six

months from the effectivity this Act.This brings up the point, however, ofcompliance with this provision. The SolicitorGeneral stated during the oral arguments that,to his knowledge, only Cebu City has declared afreedom park. That of Manila, the SunkenGardens, has since been converted into a golfcourse.If this is so, the degree of observance of BP880s mandate that every city and municipalityset aside a freedom park w/in 6 months from itseffectivity in 1985, or 20 years ago, would bepathetic and regrettable. The matter appears tohave been taken for granted amidst the swell offreedom that rose from the peaceful revolution

of 1986.Considering that the existence of such freedomparks is an essential part of the laws system ofregulation of the peoples exercise of their right

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LocGov A2010to peacefully assemble and petition, the Court isconstrained to rule that after 30 days from thefinality of this Decision, no prior permit may berequired for the exercise of such right in anypublic park or plaza of a city or municipalityuntil that city or municipality shall havecomplied with Sec 15 of the law. For withoutsuch alternative forum, to deny the permitwould in effect be to deny the right. Advancenotices should, however, be given to the

authorities to ensure proper coordination andorderly proceedings.2. NO.ReasoningIn an affidavit by Sec. Ermita, he said that CPR is inconsonance with the legal definition of "maximumtolerance" under Sec 3c of BP 880, which is the"highest degree of restraint that the military, policeand other peacekeeping authorities shall observeduring a public assembly or in the dispersal of thesame." Unfortunately, "maximum tolerance" hasacquired a different meaning over the years. Manyhave taken it to mean inaction on the part of lawenforcers even in the face of mayhem and seriousthreats to public order. Others felt that they need not

bother secure a permit when holding rallies thinkingthis would be "tolerated." Clearly, the popularconnotation of "maximum tolerance" has departedfrom its real essence under BP 880.SC rules that in view of the maximum tolerancemandated by BP 880, CPR serves no valid purpose if itmeans the same thing as maximum tolerance and isillegal if it means something else. Accordingly, what isto be followed is and should be that mandated by thelaw itself, namely, maximum tolerance.CPR has no place in our legal firmament and must bestruck down as a darkness that shrouds freedom. Itmerely confuses our people and is used by somepolice agents to justify abuses.Disposition WHEREFORE, the petitions are GRANTED

in part, and respondents, more particularly theSecretary of the Interior and Local Governments, areDIRECTED to take all necessary steps for theimmediate compliance with Section 15 of BatasPambansa No. 880 through the establishment ordesignation of at least one suitable freedom park orplaza in every city and municipality of the country.After thirty (30) days from the finality of this Decision,subject to the giving of advance notices, no priorpermit shall be required to exercise the right topeaceably assemble and petition in the public parks orplazas of a city or municipality that has not yetcomplied with Section 15 of the law. Furthermore,Calibrated Preemptive Response (CPR), insofar as itwould purport to differ from or be in lieu of maximum

tolerance, is NULL and VOID and respondents areENJOINED to REFRAIN from using it and to STRICTLYOBSERVE the requirements of maximum tolerance.

The petitions are DISMISSED in all other respects, and

the constitutionality of Batas Pambansa No. 880 isSUSTAINED.

Proprietary Function

MUNICIPALITY OF ECHAGUE V.ABELLERA

146 SCRA 180ALAMPAY; December 12, 1986

MINI

FACTS- Since 1936, petitioner municipality through itsSangguniang Bayan had been operating a municipalferry service traversing the Cagayan River, within itsmunicipality. Petitioner either operated the ferryservice itself, or leased the operation of the same tothe highest bidder.- in 1977, private respondent Ballad furnishedpetitioner a copy of a decision by the BoT grantingBallad a Certificate of Public Convenience to operate atwo-motor boat service for public transportation ofpassengers and freight across the Cagayan River,within the municipality of Echague. Ballad gave noticethat he would start his boat service operation in 1978and the municipality had to stop its own ferry boatservice within his routes.- Petitioner never heard of the application of Balladwith the BoT to operate the ferry service- Petitioner contends a resolution passed by theSangguniang Bayan of Echague favorably indorsing tothe respondent Board, Ballads application for a CPCto operate the ferry service, is a jurisdictionalprerequisite before respondent Board can award aCPC to Ballad. Since there was no such favorableindorsement, the Board issued a CPC with grave abuseof discretion amounting to lack of or in excess of its

jurisdiction.

ISSUEWON an indorsing resolution from the SangguniangBayan is a requisite before the respondent Board mayaward a certificate of public covenience

HELDYES- in previous cases, it has been held that "a privateparty desiring to operate a municipal ferry serviceshould first be awarded by the municipality the rightto operate the service before he could file anapplication for a certificate of permit with the PublicService Commission."- The Court does not subscribe to the theory of the

private respondent that with the IntegratedReorganization Plan mandated by Presidential DecreeNo. 1 and promulgated on September 24, 1972,wherein the Public Service Commission was abolished

(Par. 8, Art. III, Chapter I, Part X, IntegratedReorganization Plan) and in lieu thereof, the Board of

Transportation was created with broader jurisdiction,power and authority (Par. (a), No. 4, Article III, ChapterI, Part X the power of the Board of Transportation toissue certificate of public convenience for theoperation of water transportation utilities is absoluteand without any qualification. Respondents argue thatthe judicial decisions relied upon and invoked by thepetitioner were rendered prior to the effectivity of the

Integrated Reorganization Plan, and, therefore, thepronouncements therein made are no longergoverning. Respondents claim that the earlier courtrulings would be contrary to the letter and spirit of theprescribed Integrated Reorganization Plan creating theBoard of Transportation in substitution of the formerPublic Service Commission. Accordingly, privaterespondents contend that the Board of Transportationhas the jurisdiction and authority to grant acertification of public convenience for the operation ofa motor boat ferry service within the territorial

jurisdiction of a municipality, without need for anindorsing resolution from the municipality concerned- In resolving this petition, two sets of legal provisionsare to be considered:

(1) Under Article XX, Chapter 57, Title IX, Book III ofthe Revised Administrative Code, entitled "Conduct ofCertain Public Utilities," Sections 2318-2320 providethat a municipal council shall have authority toacquire or establish municipal ferries; that themunicipal authorities may either conduct said publicutility upon account of the municipality or let it be aprivate party who is the highest and best bidder for aperiod of one year, or upon the previous approval ofthe Provincial Board, for a longer period not exceedingfive years.(2) Under Paragraph (a)-(c) No. 4, Article III, Chapter I,Part X of the Integrated Reorganization Plan(Presidential Decree No. 1), the functions of therespondent Board of Transportation are as follows:

a.) IIssue Certificate of Public Convenience for theoperation of public land, water and air transportationutilities and services such as motor vehicles, railroadlines, domestic and overseas water carriers, domesticand international air carriers and similar publicutilities;b.) Establish,prescribe and regulate routes,zonesand/or areas of operation of particular operators ofpublic land, water and air service transports; anddetermine fix and/or prescribe fares, charges and/orrates pertinent to the operation of such public utilityfacilities and services except in cases where fares,charges or rates are established by internationalbodies or associations of which the Philippines is aparticipating member or by bodies recognized by the

Philippine Government as the proper arbiter of suchfares, charges, or rat