Emilio Gancayco

EMILIO GANCAYCO, petitioner, vs.
CITY GOVERNMENT OF QUEZON CITY AND METRO MANILA

DEVELOPMENT AUTHORITY, respondents.
G.R. No. 177933. October 11, 2011.*
METRO MANILA DEVELOPMENT AUTHORITY, petitioner, vs. JUSTICE EMILIO A. GANCAYCO (Retired),
respondent.
Civil Law; Nuisance; A nuisance per se is that which affects the immediate safety of persons and
property and may summarily be abated under the undefined law of necessity.—Article 694 of the Civil
Code defines nuisance as any act, omission, establishment, business, condition or property, or anything
else that (1) injures or endangers the health or safety of others; (2) annoys or offends the senses; (3)
shocks, defies or disregards decency or morality; (4) obstructs or interferes with the free passage of any
public highway or street, or any body of water; or, (5) hinders or impairs the use of property. A nuisance
may be per se or per accidens. A nuisance per se is that which affects the immediate safety of persons
and property and may summarily be abated under the undefined law of necessity.
Same; Same; Only courts of law have the power to determine whether a thing is a nuisance.—Neither
does the MMDA have the power to declare a thing a nuisance. Only courts of law have the power to
determine whether a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp., 506 SCRA 625
(2006), we held: We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160,
otherwise known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact
ordinances declaring, preventing or abating noise and other forms of nuisance. It bears stressing,
however, that the Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order
its condemnation. It does not have the power to find, as a fact, that a particular thing is a nuisance when
such thing is not a nuisance
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* EN BANC.
854
854
SUPREME COURT REPORTS ANNOTATED
Gancayco vs. City Government of Quezon City
per se; nor can it authorize the extrajudicial condemnation and destruction of that as a nuisance which
in its nature, situation or use is not such. Those things must be determined and resolved in the ordinary
courts of law. If a thing be in fact, a nuisance due to the manner of its operation, that question cannot
be determined by a mere resolution of the Sangguniang Bayan. (Emphasis supplied.)
PETITIONS for review on certiorari of the decision and resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Gancayco, Balasbas and Associates for petitioner in G.R. No. 177807 and respondent and Pablo M.
Gancayco in G.R. No. 177933.
The City Attorney for respondent City Government of Quezon City.
SERENO, J.:
Before us are consolidated Petitions for Review under Rule 45 of the Rules of Court assailing the
Decision1 promulgated on 18 July 2006 and the Resolution2 dated 10 May 2007 of the Court of Appeals
in CA-G.R. SP No. 84648.
The Facts
In the early 1950s, retired Justice Emilio A. Gancayco bought a parcel of land located at 746 Epifanio
delos Santos Avenue (EDSA),3 Quezon City with an area of 375 square
_______________
1 Penned by Associate Justice Magdangal M. de Leon, with Associate Justices Godardo A. Jacinto and
Juan Q. Enriquez, Jr., concurring, Rollo (G.R. No. 177807), pp. 58-79.
2 Penned by Associate Justice Magdangal M. de Leon, with Associate Justices Bienvenido L. Reyes and
Juan Q. Enriquez, Jr., concurring, id., at pp. 81-83.
3 Formerly 808 Highway 54.
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meters and covered by Transfer Certificate of Title (TCT) No. RT114558.
On 27 March 1956, the Quezon City Council issued Ordinance No. 2904, entitled “An Ordinance
Requiring the Construction of Arcades, for Commercial Buildings to be Constructed in Zones Designated
as Business Zones in the Zoning Plan of Quezon City, and Providing Penalties in Violation Thereof.”4
An arcade is defined as any portion of a building above the first floor projecting over the sidewalk
beyond the first storey wall used as protection for pedestrians against rain or sun.5
Ordinance No. 2904 required the relevant property owner to construct an arcade with a width of 4.50
meters and height of 5.00 meters along EDSA, from the north side of Santolan Road to one lot after
Liberty Avenue, and from one lot before Central Boulevard to the Botocan transmission line.
At the outset, it bears emphasis that at the time Ordinance No. 2904 was passed by the city council,
there was yet no building code passed by the national legislature. Thus, the regulation of the
construction of buildings was left to the discretion of local government units. Under this particular
ordinance, the city council required that the arcade is to be created by constructing the wall of the
ground floor facing the sidewalk a few meters away from the property line. Thus, the building owner is
not allowed to construct his wall up to the edge of the property line, thereby creating a space or shelter
under the first floor. In effect, property owners relinquish the use of the space for use as an arcade for
pedestrians, instead of using it for their own purposes.
The ordinance was amended several times. On 8 August 1960, properties located at the Quezon City-San
Juan bound-
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4 Rollo (G.R. No. 177933), pp. 29-31.
5 Definitions, “Annex A,” National Building Code, Presidential Decree No. 1096.
856
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ary were exempted by Ordinance No. 60-4477 from the construction of arcades. This ordinance was
further amended by Ordinance No. 60-4513, extending the exemption to commercial buildings from
Balete Street to Seattle Street. Ordinance No. 6603 dated 1 March 1966 meanwhile reduced the width
of the arcades to three meters for buildings along V. Luna Road, Central District, Quezon City.
The ordinance covered the property of Justice Gancayco. Subsequently, sometime in 1965, Justice
Gancayco sought the exemption of a two-storey building being constructed on his property from the
application of Ordinance No. 2904 that he be exempted from constructing an arcade on his property.
On 2 February 1966, the City Council acted favorably on Justice Gancayco’s request and issued
Resolution No. 7161, S-66, “subject to the condition that upon notice by the City Engineer, the owner
shall, within reasonable time, demolish the enclosure of said arcade at his own expense when public
interest so demands.”6
Decades after, in March 2003, the Metropolitan Manila Development Authority (MMDA) conducted
operations to clear obstructions along the sidewalk of EDSA in Quezon City pursuant to Metro Manila
Council’s (MMC) Resolution No. 02-28, Series of 2002.7 The resolution authorized the MMDA and local
government units to “clear the sidewalks, streets, avenues, alleys, bridges, parks and other public places
in Metro Manila of all illegal structures and obstructions.”8
On 28 April 2003, the MMDA sent a notice of demolition to Justice Gancayco alleging that a portion of
his building violated the National Building Code of the Philippines (Building Code)9 in relation to
Ordinance No. 2904. The MMDA gave
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6 Rollo (G.R. No. 177933), p. 32.

7 Id., at p. 7.
8 Id., at pp. 33-37.
9 Presidential Decree No. 1096.
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Justice Gancayco fifteen (15) days to clear the portion of the building that was supposed to be an arcade
along EDSA.10
Justice Gancayco did not comply with the notice. Soon after the lapse of the fifteen (15) days, the
MMDA proceeded to demolish the party wall, or what was referred to as the “wing walls,” of the ground
floor structure. The records of the present case are not entirely clear on the extent of the demolition;
nevertheless, the fact of demolition was not disputed. At the time of the demolition, the affected
portion of the building was being used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition11 with prayer for a temporary restraining order
and/or writ of preliminary injunction before the Regional Trial Court (RTC) of Quezon City, docketed as
Civil Case No. Q03-49693, seeking to prohibit the MMDA and the City Government of Quezon City from
demolishing his property. In his Petition,12 he alleged that the ordinance authorized the taking of
private property without due process of law and just compensation, because the construction of an
arcade will require 67.5 square meters from the 375 square meter property. In addition, he claimed that
the ordinance was selective and discriminatory in its scope and application when it allowed the owners
of the buildings located in the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to Seattle
Streets to construct arcades at their option. He thus sought the declaration of nullity of Ordinance No.
2904 and the payment of damages. Alternately, he prayed for the payment of just compensation should
the court hold the ordinance valid.
The City Government of Quezon City claimed that the ordinance was a valid exercise of police power,
regulating the use of property in a business zone. In addition, it pointed out
_______________
10 Rollo (G.R. No. 177933), p. 38.
11 Id., at pp. 39-55.
12 Id., at pp. 149-165.
858
858
that Justice Gancayco was already barred by estoppel, laches and prescription.
Similarly, the MMDA alleged that Justice Gancayco could not seek the nullification of an ordinance that
he had already violated, and that the ordinance enjoyed the presumption of constitutionality. It further
stated that the questioned property was a public nuisance impeding the safe passage of pedestrians.
Finally, the MMDA claimed that it was merely implementing the legal easement established by
Ordinance No. 2904.13
The RTC rendered its Decision on 30 September 2003 in favor of Justice Gancayco.14 It held that the
questioned ordinance was unconstitutional, ruling that it allowed the taking of private property for
public use without just compensation. The RTC said that because 67.5 square meters out of Justice
Gancayco’s 375 square meters of property were being taken without compensation for the public’s
benefit, the ordinance was confiscatory and oppressive. It likewise held that the ordinance violated
owners’ right to equal protection of laws. The dispositive portion thus states:
“WHEREFORE, the petition is hereby granted and the Court hereby declares Quezon City Ordinance No.
2094,15 Series of 1956 to be unconstitutional, invalid and void ab initio. The respondents are hereby
permanently enjoined from enforcing and implementing the said ordinance, and the respondent MMDA
is hereby directed to immediately restore the portion of the party wall or wing wall of the building of the
petitioner it destroyed to its original condition.
IT IS SO ORDERED.”
The MMDA thereafter appealed from the Decision of the trial court. On 18 July 2006, the Court of
Appeals (CA) partly
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13 Id., at pp. 166-173.
14 Id., at pp. 77-85.
15 Note that the questioned ordinance is Ordinance No. 2904.

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granted the appeal.16 The CA upheld the validity of Ordinance No. 2904 and lifted the injunction against
the enforcement and implementation of the ordinance. In so doing, it held that the ordinance was a
valid exercise of the right of the local government unit to promote the general welfare of its
constituents pursuant to its police powers. The CA also ruled that the ordinance established a valid
classification of property owners with regard to the construction of arcades in their respective
properties depending on the location. The CA further stated that there was no taking of private
property, since the owner still enjoyed the beneficial ownership of the property, to wit:
“Even with the requirement of the construction of arcaded sidewalks within his commercial lot, appellee
still retains the beneficial ownership of the said property. Thus, there is no “taking” for public use which
must be subject to just compensation. While the arcaded sidewalks contribute to the public good, for
providing safety and comfort to passersby, the ultimate benefit from the same still redounds to
appellee, his commercial establishment being at the forefront of a busy thoroughfare like EDSA. The
arcaded sidewalks, by their nature, assure clients of the commercial establishments thereat some kind
of protection from accidents and other hazards. Without doubt, this sense of protection can be a boon
to the business activity therein engaged.”17
Nevertheless, the CA held that the MMDA went beyond its powers when it demolished the subject
property. It further found that Resolution No. 02-28 only refers to sidewalks, streets, avenues, alleys,
bridges, parks and other public places in Metro Manila, thus excluding Justice Gancayco’s private
property. Lastly, the CA stated that the MMDA is not clothed with the authority to declare, prevent or
abate nuisances. Thus, the dispositive portion stated:
_______________
16 Rollo (G.R. No. 177933), pp. 86-107.
17 Id., at p. 99.
860
860
“WHEREFORE, the appeals are PARTLY GRANTED. The Decision dated September 30, 2003 of the
Regional Trial Court, Branch 224, Quezon City, is MODIFIED, as follows:
1) The validity and constitutionality of Ordinance No. 2094,18 Series of 1956, issued by the City Council
of Quezon City, is UPHELD; and
2) The injunction against the enforcement and implementation of the said Ordinance is LIFTED.
SO ORDERED.”
This ruling prompted the MMDA and Justice Gancayco to file their respective Motions for Partial
Reconsideration.19
On 10 May 2007, the CA denied the motions stating that the parties did not present new issues nor offer
grounds that would merit the reconsideration of the Court.20
Dissatisfied with the ruling of the CA, Justice Gancayco and the MMDA filed their respective Petitions for
Review before this Court. The issues raised by the parties are summarized as follows:
I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED FROM ASSAILING THE VALIDITY OF
ORDINANCE NO. 2904.
II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.
III. WHETHER OR NOT THE WING WALL OF JUSTICE GANCAYCO’S BUILDING IS A PUBLIC NUISANCE.
IV. WHETHER OR NOT THE MMDA LEGALLY DEMOLISHED THE PROPERTY OF JUSTICE GANCAYCO.
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18 Note that the questioned ordinance is Ordinance No. 2904.
19 Id., at pp. 108-116.
20 Rollo (G.R. No. 177807), pp. 81-83.
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The Court’s Ruling
Estoppel
The MMDA and the City Government of Quezon City both claim that Justice Gancayco was estopped
from challenging the ordinance, because, in 1965, he asked for an exemption from the application of the
ordinance. According to them, Justice Gancayco thereby recognized the power of the city government to
regulate the construction of buildings.
To recall, Justice Gancayco questioned the constitutionality of the ordinance on two grounds: (1)
whether the ordinance “takes” private property without due process of law and just compensation; and
(2) whether the ordinance violates the equal protection of rights because it allowed exemptions from its
application.
On the first ground, we find that Justice Gancayco may still question the constitutionality of the
ordinance to determine whether or not the ordinance constitutes a “taking” of private property without
due process of law and just compensation. It was only in 2003 when he was allegedly deprived of his
property when the MMDA demolished a portion of the building. Because he was granted an exemption
in 1966, there was no “taking” yet to speak of.
Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,21 we held:
“It is therefore decisively clear that estoppel cannot apply in this case. The fact that petitioner
acquiesced in the special conditions imposed by the City Mayor in subject business permit does not
preclude it from challenging the said imposition, which is ultra vires or beyond the ambit of authority of
respondent City Mayor. Ultra vires acts or acts which are clearly beyond the scope of one’s authority are
null and void and cannot be given any effect. The doctrine of estoppel cannot operate to give effect to
an
_______________
21 385 Phil. 956, 978; 329 SCRA 314, 335 (2000).
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act which is otherwise null and void or ultra vires.” (Emphasis supplied.)
Recently, in British American Tobacco v. Camacho,22 we likewise held:
“We find that petitioner was not guilty of estoppel. When it made the undertaking to comply with all
issuances of the BIR, which at that time it considered as valid, petitioner did not commit any false
misrepresentation or misleading act. Indeed, petitioner cannot be faulted for initially undertaking to
comply with, and subjecting itself to the operation of Section 145(C), and only later on filing the subject
case praying for the declaration of its unconstitutionality when the circumstances change and the law
results in what it perceives to be unlawful discrimination. The mere fact that a law has been relied upon
in the past and all that time has not been attacked as unconstitutional is not a ground for considering
petitioner estopped from assailing its validity. For courts will pass upon a constitutional question only
when presented before it in bona fide cases for determination, and the fact that the question has not
been raised before is not a valid reason for refusing to allow it to be raised later.” (Emphasis supplied.)
Anent the second ground, we find that Justice Gancayco may not question the ordinance on the ground
of equal protection when he also benefited from the exemption. It bears emphasis that Justice
Gancayco himself requested for an exemption from the application of the ordinance in 1965 and was
eventually granted one. Moreover, he was still enjoying the exemption at the time of the demolition as
there was yet no valid notice from the city engineer. Thus, while the ordinance may be attacked with
regard to its different treatment of properties that appears to be similarly situated, Justice Gancayco is
not the proper person to do so.
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22 G.R. No. 163583, 20 August 2008, 562 SCRA 511, 537.
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Zoning and the regulation of the
construction of buildings are valid
exercises of police power.
In MMDA v. Bel-Air Village Association,23 we discussed the nature of police powers exercised by local
government units, to wit:
“Police power is an inherent attribute of sovereignty. It has been defined as the power vested by the
Constitution in the legislature to make, ordain, and establish all manner of wholesome and reasonable
laws, statutes and ordinances, either with penalties or without, not repugnant to the Constitution, as
they shall judge to be for the good and welfare of the commonwealth, and for the subjects of the same.
The power is plenary and its scope is vast and pervasive, reaching and justifying measures for public
health, public safety, public morals, and the general welfare.
It bears stressing that police power is lodged primarily in the National Legislature. It cannot be exercised
by any group or body of individuals not possessing legislative power. The National Legislature, however,
may delegate this power to the President and administrative boards as well as the lawmaking bodies of
municipal corporations or local government units. Once delegated, the agents can exercise only such
legislative powers as are conferred on them by the national lawmaking body.”
To resolve the issue on the constitutionality of the ordinance, we must first determine whether there
was a valid delegation of police power. Then we can determine whether the City Government of Quezon
City acted within the limits of the delegation.
It is clear that Congress expressly granted the city government, through the city council, police power by
virtue of Section 12(oo) of Republic Act No. 537, or the Revised Charter of Quezon City,24 which states:
_______________
23 385 Phil. 586, 601-602; 328 SCRA 836, 843-844 (2000).
24 Enacted on 16 June 1950.
864
864
“To make such further ordinances and regulations not repugnant to law as may be necessary to carry
into effect and discharge the powers and duties conferred by this Act and such as it shall deem
necessary and proper to provide for the health and safety, promote the prosperity, improve the morals,
peace, good order, comfort, and convenience of the city and the inhabitants thereof, and for the
protection of property therein; and enforce obedience thereto with such lawful fines or penalties as the
City Council may prescribe under the provisions of subsection (jj) of this section.”
Specifically, on the powers of the city government to regulate the construction of buildings, the Charter
also expressly provided that the city government had the power to regulate the kinds of buildings and
structures that may be erected within fire limits and the manner of constructing and repairing them.25
With regard meanwhile to the power of the local government units to issue zoning ordinances, we apply
Social Justice Society v. Atienza.26 In that case, the Sangguniang Panlungsod of Manila City enacted an
ordinance on 28 November 2001 reclassifying certain areas of the city from industrial to commercial. As
a result of the zoning ordinance, the oil terminals located in those areas were no longer allowed. Though
the oil companies contended that they stood to lose billions of pesos, this Court upheld the power of the
city government to pass the assailed ordinance, stating:
“In the exercise of police power, property rights of individuals may be subjected to restraints and
burdens in order to fulfil the objectives of the government. Otherwise stated, the government may
enact legislation that may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare. However, the interference must be reasonable and not arbitrary. And to
forestall arbitrariness, the methods or means used to protect public health, morals,
_______________
25 Sec. 12 (j).
26 G.R. No. 156502, 13 February 2008, 545 SCRA 92, 139-140.
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safety or welfare must have a reasonable relation to the end in view.
The means adopted by the Sanggunian was the enactment of a zoning ordinance which reclassified the
area where the depot is situated from industrial to commercial. A zoning ordinance is defined as a local
city or municipal legislation which logically arranges, prescribes, defines and apportions a given political
subdivision into specific land uses as present and future projection of needs. As a result of the zoning,
the continued operation of the businesses of the oil companies in their present location will no longer
be permitted. The power to establish zones for industrial, commercial and residential uses is derived
from the police power itself and is exercised for the protection and benefit of the residents of a locality.
Consequently, the enactment of Ordinance No. 8027 is within the power of the Sangguniang Panlungsod
of the City of Manila and any resulting burden on those affected cannot be said to be unjust...”
(Emphasis supplied)
In Carlos Superdrug v. Department of Social Welfare and Development,27 we also held:
“For this reason, when the conditions so demand as determined by the legislature, property rights must
bow to the primacy of police power because property rights, though sheltered by due process, must
yield to general welfare.
Police power as an attribute to promote the common good would be diluted considerably if on the mere
plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of the
provision in question, there is no basis for its nullification in view of the presumption of validity which
every law has in its favor.” (Emphasis supplied.)
In the case at bar, it is clear that the primary objectives of the city council of Quezon City when it issued
the questioned ordinance ordering the construction of arcades were the
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27 G.R. No. 166494, 29 June 2007, 526 SCRA 130, 144.
866
866
health and safety of the city and its inhabitants; the promotion of their prosperity; and the improvement
of their morals, peace, good order, comfort, and the convenience. These arcades provide safe and
convenient passage along the sidewalk for commuters and pedestrians, not just the residents of Quezon
City. More especially so because the contested portion of the building is located on a busy segment of
the city, in a business zone along EDSA.
Corollarily, the policy of the Building Code,28 which was passed after the Quezon City Ordinance,
supports the purpose for the enactment of Ordinance No. 2904. The Building Code states:
“Section 102. Declaration of Policy.—It is hereby declared to be the policy of the State to safeguard
life, health, property, and public welfare, consistent with the principles of sound environmental
management and control; and to this end, make it the purpose of this Code to provide for all buildings
and structures, a framework of minimum standards and requirements to regulate and control their
location, site, design quality of materials, construction, occupancy, and maintenance.”
Section 1004 likewise requires the construction of arcades whenever existing or zoning ordinances
require it. Apparently, the law allows the local government units to determine whether arcades are
necessary within their respective jurisdictions.
Justice Gancayco argues that there is a three-meter sidewalk in front of his property line, and the arcade
should be constructed above that sidewalk rather than within his property line. We do not need to
address this argument inasmuch as it raises the issue of the wisdom of the city ordinance, a matter we
will not and need not delve into.
To reiterate, at the time that the ordinance was passed, there was no national building code enforced to
guide the city
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28 Presidential Decree No. 1096.
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council; thus, there was no law of national application that prohibited the city council from regulating
the construction of buildings, arcades and sidewalks in their jurisdiction.
The “wing walls” of the building are not
nuisances per se.
The MMDA claims that the portion of the building in question is a nuisance per se.
We disagree.
The fact that in 1966 the City Council gave Justice Gancayco an exemption from constructing an arcade
is an indication that the wing walls of the building are not nuisances per se. The wing walls do not per se
immediately and adversely affect the safety of persons and property. The fact that an ordinance may
declare a structure illegal does not necessarily make that structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission, establishment, business, condition or
property, or anything else that (1) injures or endangers the health or safety of others; (2) annoys or
offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water; or, (5) hinders or impairs the use
of property. A nuisance may be per se or per accidens. A nuisance per se is that which affects the
immediate safety of persons and property and may summarily be abated under the undefined law of
necessity.29
Clearly, when Justice Gancayco was given a permit to construct the building, the city council or the city
engineer did not consider the building, or its demolished portion, to be a threat to the safety of persons
and property. This fact alone
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29 Telmo v. Bustamante, G.R. No. 182567, 13 July 2009, 592 SCRA 552 citing Tayaban v. People, G.R. No.
150194, 6 March 2007, 517 SCRA 488, 507.
868
868
should have warned the MMDA against summarily demolishing the structure.
Neither does the MMDA have the power to declare a thing a nuisance. Only courts of law have the
power to determine whether a thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp.,30 we
held:
“We agree with petitioner’s contention that, under Section 447(a)(3)(i) of R.A. No. 7160, otherwise
known as the Local Government Code, the Sangguniang Panglungsod is empowered to enact ordinances
declaring, preventing or abating noise and other forms of nuisance. It bears stressing, however, that the
Sangguniang Bayan cannot declare a particular thing as a nuisance per se and order its condemnation. It
does not have the power to find, as a fact, that a particular thing is a nuisance when such thing is not a
nuisance per se; nor can it authorize the extrajudicial condemnation and destruction of that as a
nuisance which in its nature, situation or use is not such. Those things must be determined and resolved
in the ordinary courts of law. If a thing be in fact, a nuisance due to the manner of its operation, that
question cannot be determined by a mere resolution of the Sangguniang Bayan.” (Emphasis supplied.)
MMDA illegally demolished
the property of Justice Gancayco.

MMDA alleges that by virtue of MMDA Resolution No. 02-28, Series of 2002, it is empowered to
demolish Justice Gancayco’s property. It insists that the Metro Manila Council authorized the MMDA
and the local government units to clear the sidewalks, streets, avenues, alleys, bridges, parks and other
public places in Metro Manila of all illegal structures and obstructions. It further alleges that it
demolished the property pursuant to the Building Code in relation to Ordinance No. 2904 as amended.
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30 G.R. No. 166744, 2 November 2006, 506 SCRA 625, 660-661.
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However, the Building Code clearly provides the process by which a building may be demolished. The
authority to order the demolition of any structure lies with the Building Official. The pertinent provisions
of the Building Code provide:
“SECTION 205. Building Officials.—Except as otherwise provided herein, the Building Official shall be
responsible for carrying out the provisions of this Code in the field as well as the enforcement of orders
and decisions made pursuant thereto.
Due to the exigencies of the service, the Secretary may designate incumbent Public Works District
Engineers, City Engineers and Municipal Engineers act as Building Officials in their respective areas of
jurisdiction. The designation made by the Secretary under this Section shall continue until regular
positions of Building Official are provided or unless sooner terminated for causes provided by law or
decree.
xxx xxx xxx
SECTION 207. Duties of a Building Official.—In his respective territorial jurisdiction, the Building
Official shall be primarily responsible for the enforcement of the provisions of this Code as well as of the
implementing rules and regulations issued therefor. He is the official charged with the duties of issuing
building permits.
In the performance of his duties, a Building Official may enter any building or its premises at all
reasonable times to inspect and determine compliance with the requirements of this Code, and the
terms and conditions provided for in the building permit as issued.
When any building work is found to be contrary to the provisions of this Code, the Building Official may
order the work stopped and prescribe the terms and/or conditions when the work will be allowed to
resume. Likewise, the Building Official is authorized to order the discontinuance of the occupancy or use
of any building or structure or portion thereof found to be occupied or used contrary to the provisions
of this Code.
xxx xxx xxx
870
870

SECTION 215. Abatement of Dangerous Buildings.—When any building or structure is found or
declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition
depending upon the degree of danger to life, health, or safety. This is without prejudice to further action
that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the
Philippines.” (Emphasis supplied.)
MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions, Inc.31 is applicable to the case
at bar. In that case, MMDA, invoking its charter and the Building Code, summarily dismantled the
advertising media installed on the Metro Rail Transit (MRT) 3. This Court held:
“It is futile for MMDA to simply invoke its legal mandate to justify the dismantling of Trackworks’
billboards, signages and other advertising media. MMDA simply had no power on its own to dismantle,
remove, or destroy the billboards, signages and other advertising media installed on the MRT3 structure
by Trackworks. In Metropolitan Manila Development Authority v. Bel-Air Village Association, Inc.,
Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., and Metropolitan Manila
Development Authority v. Garin, the Court had the occasion to rule that MMDA’s powers were limited
to the formulation, coordination, regulation, implementation, preparation, management, monitoring,
setting of policies, installing a system, and administration. Nothing in Republic Act No. 7924 granted
MMDA police power, let alone legislative power.
Clarifying the real nature of MMDA, the Court held:
...The MMDA is, as termed in the charter itself, a “development authority”. It is an agency created for
the purpose of laying down policies and coordinating with the various national government agencies,
people’s organizations, non-governmental organizations and the private sector for the efficient and
expeditious delivery of basic services in the vast metropolitan area. All its functions are administrative in
_______________
31 G.R. No. 179554, 16 December 2009, 608 SCRA 325, 332-334.
871
VOL. 658, OCTOBER 11, 2011
871
nature and these are actually summed up in the charter itself, viz.:
Sec. 2. Creation of the Metropolitan Manila Development Authority.—xxx.
The MMDA shall perform planning, monitoring and coordinative functions, and in the process exercise
regulatory and supervisory authority over the delivery of metro-wide services within Metro Manila,
without diminution of the autonomy of local government units concerning purely local matters.
The Court also agrees with the CA’s ruling that MMDA Regulation No. 96-009 and MMC Memorandum
Circular No. 88-09 did not apply to Trackworks’ billboards, signages and other advertising media. The
prohibition against posting, installation and display of billboards, signages and other advertising media
applied only to public areas, but MRT3, being private property pursuant to the BLT agreement between
the Government and MRTC, was not one of the areas as to which the prohibition applied. Moreover,
MMC Memorandum Circular No. 88-09 did not apply to Trackworks’ billboards, signages and other
advertising media in MRT3, because it did not specifically cover MRT3, and because it was issued a year
prior to the construction of MRT3 on the center island of EDSA. Clearly, MMC Memorandum Circular No.
88-09 could not have included MRT3 in its prohibition.
MMDA’s insistence that it was only implementing Presidential Decree No. 1096 (Building Code) and its
implementing rules and regulations is not persuasive. The power to enforce the provisions of the
Building Code was lodged in the Department of Public Works and Highways (DPWH), not in MMDA,
considering the law’s following provision, thus:
Sec. 201. Responsibility for Administration and Enforcement.—The administration and enforcement
of the provisions of this Code including the imposition of penalties for administrative violations thereof
is hereby vested in the Secretary of Public Works, Transportation and Communications, hereinafter
referred to as the “Secretary.”
There is also no evidence showing that MMDA had been delegated by DPWH to implement the Building
Code. (Emphasis supplied.)
872
872
Additionally, the penalty prescribed by Ordinance No. 2904 itself does not include the demolition of
illegally constructed buildings in case of violations. Instead, it merely prescribes a punishment of “a fine
of not more than two hundred pesos (P200.00) or by imprisonment of not more than thirty (30) days, or
by both such fine and imprisonment at the discretion of the Court, Provided, that if the violation is
committed by a corporation, partnership, or any juridical entity, the Manager, managing partner, or any
person charged with the management thereof shall be held responsible therefor.” The ordinance itself
also clearly states that it is the regular courts that will determine whether there was a violation of the
ordinance.
As pointed out in Trackworks, the MMDA does not have the power to enact ordinances. Thus, it cannot
supplement the provisions of Quezon City Ordinance No. 2904 merely through its Resolution No. 02-28.
Lastly, the MMDA claims that the City Government of
Que--zon City may be considered to have approved the demolition of the structure, simply because then
Quezon City Mayor Feliciano R. Belmonte signed MMDA Resolution No. 02-28. In effect, the city
government delegated these powers to the MMDA. The powers referred to are those that include the
power to declare, prevent and abate a nuisance32 and to further impose the penalty of removal or
demolition of the building or structure by the owner or by the city at the expense of the owner.33
MMDA’s argument does not hold water. There was no valid delegation of powers to the MMDA.
Contrary to the claim of the MMDA, the City Government of Quezon City washed its hands off the acts
of the former. In its Answer,34 the city government stated that “the demolition was undertaken by the
_______________
32 Sec. 12(w).
33 Sec. 12(jj).
34 Rollo (G.R. No. 177933) pp. 249-270.
873
VOL. 658, OCTOBER 11, 2011
873
MMDA only, without the participation and/or consent of Quezon City.” Therefore, the MMDA acted on
its own and should be held solely liable for the destruction of the portion of Justice Gancayco’s building.
WHEREFORE, in view of the foregoing, the Decision of the Court of Appeals in CA-G.R. SP No. 84648 is
AFFIRMED.
SO ORDERED.
Corona (C.J.), Carpio, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Abad, Villarama, Jr., Mendoza and
Perlas-Bernabe, JJ., concur.
Bersamin and Perez, JJ., On Official Leave.
Del Castillo, J., On Sick Leave.
Reyes, J., No Part.
Judgment affirmed.
Note.—There is “taking” when the expropriator enters private property not only for a momentary
period but for a more permanent duration, for the purpose of devoting the property to a public use in
such a manner as to oust the owner and deprive him of all beneficial enjoyment thereof. (Philippine
National Oil Company vs. Maglasang, 570 SCRA 560 [2008])
——o0o—— Gancayco vs. City Government of Quezon City, 658 SCRA 853, G.R. No. 177807 October 11,
2011
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF MANILA, NATIONAL COMMISSION FOR
CULTURE AND THE ARTS, NATIONAL HISTORICAL COMMISSION OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross over it.
My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary Restraining Order, Writ of
Preliminary Injunction, and Others 1 filed by the Knights of Rizal (KOR) seeking, among others, for an
order to stop the construction of respondent DMCI Homes, Inc. 's condominium development project
known as the Torre de Manila. In its Resolution dated 25 November 2014, the Court resolved to treat
the petition as one for mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a 7,716.60-square meter lot
in the City of Manila, located near Taft Avenue, Ermita, beside the former Manila Jai-Alai Building and
Adamson University.4 The lot was earmarked for the construction of DMCI-PDI's Torre de Manila
condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction of its project. It then
obtained a Zoning Permit from the City of Manila's City Planning and Development Office (CPDO) on 19
June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted DMCI-PDI a Building
Permit, allowing it to build a "Forty Nine (49) Storey w/ Basement & 2 penthouse Level
Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the Office of the Building
Official to temporarily suspend the Building Permit of DMCI-PDI, citing among others, that "the Torre de
Manila Condominium, based on their development plans, upon completion, will rise up high above the
back of the national monument, to clearly dwarf the statue of our hero, and with such towering heights,
would certainly ruin the line of sight of the Rizal Shrine from the frontal Roxas Boulevard vantage
point[.]"7
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's City Legal Officer on
whether he is bound to comply with Resolution No. 121.8 In his letter dated 12 September 2012, City
Legal Officer Renato G. Dela Cruz stated that there is "no legal justification for the temporary suspension
of the Building Permit issued in favor of [DMCI-PDI]" since the construction "lies outside the Luneta
Park" and is "simply too far to I be a repulsive distraction or have an objectionable effect on the artistic
and historical significance" of the Rizal Monument. 9 He also pointed out that "there is no showing that
the [area of subject property has been officially declared as an anthropological or archeological area.
Neither has it ' been categorically designated by the National Historical Institute as a heritage zone, a
cultural property, a historical landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or the National Historical
Commission of the Philippines (NHCP) on the matter. In the letter10 dated 6 November 2012 from NHCP
I Chairperson Dr. Maria Serena I. Diokno addressed to DMCI-PDI and the letter 11 dated 7 November
2012 from NHCP Executive Director III Ludovico D. Bado)f addressed to then Manila Mayor Alfredo S.
Lim, the NHCP maintained that the Torre de Manila project site is outside the boundaries of the Rizal
f.ark and well to the rear of the Rizal Monument, and thus, cannot possibly obstruct the frontal view of
the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila project that garnered
about 7,800 signatures, the City Council of Manila issued Resolution No. 146, reiterating its directive in
Resolution No. 121 1 enjoining the City of Manila's building officials to temporarily suspend ~MCI-PDI's
Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PIDI President Alfredo R.
Austria sought clarification on the controversy surrounding its Zoning Permit. He stated that since the
CPDO granted its Zoning Permit, DMCI-PDI continued with the application for the Building Permit, which
was granted, and did not deem it necessary to go through the process of appealing to the local zoning
board. He then expressed DMCI-PDI's willingness to comply with the process if the City of Manila
deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals (MZBAA) issued Zoning
Board Resolution No. 06, Series of 2013, 14 recommending the approval of DMCI-PDI's application for
variance. ;The MZBAA noted that the Torre de Manila project "exceeds the prescribed maximum
Percentage of Land Occupancy (PLO) and exceeds the prescribeµ Floor Area Ratio (FAR) as stipulated in
Article V, Section 17 of City Ordinance No. 8119[.]" However, the MZBAA still recommended the
approval of the variance subject to the five conditions set under the same resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board Resolution No. 06-A,
Series of 2013, 15 on 8 January 2014, amending condition (c) in the earlier resolution. 16
On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of 2014, 17 adopting
Zoning Board Resolution Nos. 06 and 06- A. The City Council resolution states that "the City Council of
Manila find[ s] no cogent reason to deny and/or reverse the aforesaid recommendation of the [MZBAA]
and hereby ratif[ies] and confirm[s] all previously issued permits, licenses and approvals issued by the
City [Council] of Manila for Torre de Manila[.]"
Arguments of the KOR
On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-sectarian and non-profit
organization" 18 created under Republic Act No. 646, 19 filed a Petition for Injunction seeking a
temporary restraining I order, and later a permanent injunction, against the construction of DMCIPDI's
Torre de Manila condominium project. The KOR argues that the subject matter of the present suit is one
of "transcendental importance, paramount public interest, of overarching significance to society, or with
far-reaching implication" involving the desecration of the Rizal Monument.
The KOR asserts that the completed Torre de Manila structure will "[stick] out like a sore thumb, [dwarf]
all surrounding buildings within a radius of two kilometer/s" and "forever ruin the sightline of the Rizal
Monument in Luneta Park: Torre de Manila building would loom at the back I and overshadow the
entire monument, whether up close or viewed from a distance. ''20
Further, the KOR argues that the Rizal Monument, as a National Treasure, is entitled to "full protection
of the law"21 and the national government must abate the act or activity that endangers the nation's
cultural heritage "even against the wishes of the local government hosting it." 22
Next, the KOR contends that the project is a nuisance per se23 because "[t]he despoliation of the sight
view of the Rizal Monument is a situation that annoy's or offends the senses' of every Filipino who
honors the memory of the National Hero Jose Rizal. It is a present, continuing, worsening and
aggravating status or condition. Hence, the PROJECT is a nuisance per se. It deserves I to be abated
summarily, even without need of judicial proceeding. "24
The KOR also claims that the Torre de Manila project violates the NHCP's Guidelines on Monuments
Honoring National Heroes, Illustrious Filipinos and Other Personages, which state that historic
monuments should assert a visual "dominance" over its surroundings,25 as well as the country's
commitment under the International Charter for the Conservation and Restoration of Monuments and
Sites, otherwise known as the Venice Charter. 26
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and continues in bad faith, and
is in violation of the City of Manila's zoning ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on the following grounds:
I.
THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.
II.
KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE THIS ACTION.
III.
TORRE DE MANILA IS NOT A NUISANCE PER SE.
IV.
DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND

V.
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER AND/OR A WRIT OF PRELIMINARY

INJUNCTION. 28
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for injunction.29 Even
assuming that the Court has concurrent jurisdiction, DMCI-PDI maintains that the petition should still
have been filed with the Regional Trial Court under the doctrine of hierarchy of courts and because the
petition involves questions of fact. 30
DMCI-PDI also contends that the KOR's petition is in actuality an opposition' or appeal from the
exemption granted by the City of Manila's MZBAA, a matter which is also not within the jurisdiction of
the Court. 31 DMCI-PDI claims that the proper forum should be the MZBAA, and should the KOR fail
there, it should appeal the same to the Housing and Land Use Regulatory Board (HLURB). 32
DMCI-PDI further argues that since the Rizal Monument has been declared a National Treasure, the
power to issue a cease and desist order is lodged with the "appropriate cultural agency" under Section
25 of Republic Act No. li0066 or the National Cultural Heritage Act of 2009. 33 Moreover, DMCI-PDI
asserts that the KOR availed of the wrong remedy since an action for injunction is not the proper
remedy for abatement of a nuisance. 34
Second, DMCI-PDI maintains that the KOR has no standing to institute this proceeding because it is not a
real party in interest in this case. The purposes of the KOR as a public corporation do not include the
preservation of the Rizal Monument as a cultural or historical heritage site.35 The KOR has also not
shown that it suffered an actual or threatened injury as a result of the alleged illegal conduct of the City
of Manila. If there is any injury to the KOR at all, the same was caused by the private conduct of a
private entity and not the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-PDI reiterates that it
obtained all the necessary permits, licenses, clearances, and certificates for its construction. 37 It also
refutes the KOR's claim that the Torre de Manila would dwarf all other structures around it; considering
that there are other tall buildings even closer to the Rizal Monument itself, namely, the Eton Baypark
Tower at the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the Rizal
Monument) and Sunview Palace at the corner of M.H. Del Pilar and T.M. Kalaw Streets (42 storeys; 250
meters from the Rizal Monument). 38
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started construction of its Torre de
Manila project. Bad faith cannot be attributed to it since it was within the "lawful exercise of [its] rights."
39 The KOR failed to present any proof that DMCI-PDI did not follow the proper procedure and zoning
restrictions of the City of Manila. Aside from obtaining all the necessary permits from the appropriate
government agencies,40 DMCI-PDI also sought clarification on its right to build on its site from the Office
of the City Legal Officer of Manila, the Manila CPDO, and the NHCP.41 Moreover, even if the KOR
proffered such proof, the Court would be 1 in no position to declare DMCI-PDI's acts as illegal since the
Court is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining Order (TRO) and writ of
preliminary injunction. DMCI-PDI asserts that the KOR has failed to establish "a clear and unmistakable
right to enjoin I the construction of Torre de Manila, much less request its demolitior."43 DMCI-PDI
further argues that it "has complied with all the legal requirements for the construction of Torre de
Manila x x x [and] has violated o right of KOR that must be protected. Further, KOR stands to suffer o
damage because of its lack of direct pecuniary interest in this petiti1 on. To grant the KOR's application
for injunctive relief would constitute an unjust taking of property without due process of law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ of mandamus cannot issue "considering that no
property or substantive rights whatsoever in favor of [the KOR] is being affected or x x x entitled to
judicial protection[.]"45
The City of Manila also asserts that the "issuance and revocation of a Building Permit undoubtedly fall
under the category of a discretionary act or duty performed by the proper officer in light of his
meticulous appraisal and evaluation of the pertinent supporting documents of the application in
accordance with the rules laid out under the National Building Code [and] Presidential Decree No.
1096,"46 while the remedy of mandamus is available only to compel the performance of a ministerial
duty. 47
Further, the City of Manila maintains that the construction of the Torre de Manila did not violate any
existing law, since the "edifice [is] well behind (some 789 meters away) the line of sight of the Rizal
Monument."48 It adds that the City of Manila's "prevailing Land Use and Zoning Ordinance [Ordinance
No. 8119] x xx allows an adjustment in Floor Area Ratios thru the [MZBAA] subject to further final
approval of the City Council."49 The City Council adopted the MZBAA's favorable: recommendation in its
Resolution No. 5, ratifying all the licenses and permits issued to DMCI-PDI for its Torre de Manila
project.
In its Position Paper dated 15 July 2015, the City of Manila admitted that the Zoning Permit issued to
DMCI-PDI was "in breach of certain provisions of City Ordinance No. 8119."50 It maintained, however, 1
that the deficiency is "procedural in nature and pertains mostly td the failure of [DMCI-PDI] to comply
with the stipulations that allow an excess in the [FAR] provisions." 51 Further, the City of Manila argued
that the MZBAA, when it recommended the allowance of the project's variance, imposed certain
conditions upon the Torre de Manila project in order to mitigate the possible adverse effects of an
excess FAR. 52
The Issue
The issues raised by the parties can be summed up into one main point: Can the Court issue a writ of
mandamus against the officials of the City of Manila to stop the construction of DMCI-PDI's Torre de
Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held that "what is not expressly or
impliedly prohibited by law may be done, except when the act is contrary to morals, customs and I
public order." This principle is fundamental in a democratic society, to protect the weak against the
strong, the minority against the majority, and the individual citizen against the government. In essence,
this principle, which is the foundation of a civilized society under the rule of law, prescribes that the
freedom to act can be curtailed only through law. Without this principle, the rights, freedoms, and civil
liberties of citizens can be arbitrarily and whimsically trampled upon by the shifting passions of those
who can spout the loudest, or those who can gather the biggest crowd or the most number of Internet
trolls. In other instances,54 the Court has allowed or upheld actions that were not expressly prohibited
by statutes when it determined that these acts were not contrary to morals, customs, and public order,
or that upholding the same would lead to a more equitable solution to the controversy. However, it is
the law itself - Articles 130655 and 1409(1)56 of the Civil Code - which prescribes that acts not contrary
to morals, good customs, public order, or public policy are allowed if also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is "contrary to morals,
customs, and public order" or that it brings harm, danger, or hazard to the community. On the contrary,
the City of Manila has determined that DMCI-PDI complied with the standards set under the pertinent
laws and local ordinances to construct its Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the construction of the
Torre de Manila due to its effect on the background "view, vista, sightline, or setting" of the Rizal
Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. - Historic site and facilities shall be
conserved and preserved. These shall, to the extent possible, be made accessible for the educational
and cultural enrichment of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and enhance their heritage
values.
2. Historic sites and facilities shall be adaptively re-used.

3. Any person who proposes to add, to alter, or partially demolish a designated heritage property will
require the approval of the City Planning and Development Office (CPDO) and shall be required to
prepare a heritage impact statement that will demonstrate to the satisfaction of CPDO that the proposal
will not adversely impact the heritage significance of the property and shall submit plans for review by
the CPDO in coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties shall be evaluated based on
criteria established by the heritage significance of the particular property or site.
5. Where an owner of a heritage property applies for approval to demolish a designated heritage
property or properties, the owner shall be required to provide evidence to satisfaction that
demonstrates that rehabilitation and re-use of the property is not viable.
6. Any designated heritage property which is to be demolished or significantly altered shall be

thoroughly documented for archival purposes with! a history, photographic records, and measured
drawings, in accordance with accepted heritage recording guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the existing scale and pattern of
those areas, which maintains the existing landscape and streetscape qualities of those areas, and which
does not result in the loss of any heritage resources.
8. Development plans shall ensure that parking facilities (surface lots residential garages, stand-alone
parking garages and parking components as parts of larger developments) are compatibly integrated
into heritage areas, and/or are compatible with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to place metering equipment,
transformer boxes, power lines, conduit, equipment boxes, piping, wireless telecommunication towers
and other utility equipment and devices in locations which do not detract from the visual character of
heritage resources, and which do not have a negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration of the heritage property to
ensure that design guidelines and standards are met and shall promote preservation and conservation
of the heritage property. (Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only serve as guides, as it
expressly states that "the following shall guide the :development of historic sites and facilities." A guide
simply sets a direction 'or gives an instruction to be followed by prope1iy owners and developers in
order to conserve and enhance a property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City considers it in the public interest that all projects are
designed and developed in a safe, efficient and aesthetically pleasing manner. Site development shall
consider the environmental character and limitations of the site and its adjacent properties. All project
elements shall be in complete harmony according to good design principles and the subsequent
development must be visually pleasing as well as efficiently functioning especially in relation to the
adjacent properties and bordering streets.
The design, construction, operation and maintenance of every facility shall be in harmony with the
existing and intended character of its neighborhood. It shall not change the essential character of the
said area but will be a substantial improvement to the value of the properties in the neighborhood in
particular and the community in general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with1 regard to safety, efficiency and
high standards of design. The natural environmental character of the site and its adjacent properties
shall be considered in the site development of each building and facility.
2. The height and bulk of buildings and structures shall be so designed that it does not impair the entry
of light and ventilation, cause the loss I of privacy and/or create nuisances, hazards or inconveniences to
adjacent developments.
3. Abutments to adjacent properties shall not be allowed without the neighbor's prior written consent
which shall be required by the City Planning and Development Office (CPDO) prior to the granting of a
Zoning Permit (Locational Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements of the National Building
Code. These shall be located, developed and landscaped in order to enhance the aesthetic quality of the
facility. In no case, shall parking areas/lots encroach into street rights-of-way and shall follow the Traffic
Code as set by the City.
5. Developments that attract a significant volume of public modes of transportation, such as tricycles,
jeepneys, buses, etc., shall provide on-site parking for the same. These shall also provide vehicular
loading and unloading bays so as street traffic flow will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I materials shall be provided to all
noise and vibration-producing machinery. Noise levels shall be maintained according to levels specified
in DENR DA9 No. 30 - Abatement of Noise and Other Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or felt from any point
beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and other regulatory tools that
will ensure high quality developments shall be required from developers of commercial subdivisions and
condominiums. These shall be submitted to the City Planning and Development Office (CPDO) for review
and approval. (Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically regulates the "development of historic sites and
facilities." Section 48 regulates "large commercial signage and/or pylon." There is nothing in Sections 47
and 48 of Ordinance No. 8119 that disallows the construction of a building outside the boundaries of a
historic site or facility, where such building may affect the1 background of a historic site. In this case, the
Torre de Manila stands 870 meters outside and to the rear of the Rizal Monument and "cannot possibly
obstruct the front view of the [Rizal] Monument." 57 Likewise, ;the Torre de Manila is not in an area that
has been declared as an "anthropological or archeological area" or in an area designated as a heritage
zone, cultural property, historical landmark, or a national treasure by the NHCP. 58
Section 15, Article XIV of the Constitution, which deals with the subject of arts and culture, provides that
"[t]he State shall conserve, promote and popularize the nation's historical and cultural heritage and
resources x x x." Since this provision is not self-executory, Congress passed laws dealing with the
preservation and conservation of our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of 2009, which
empowers the National Commission for Culture and the Arts and other cultural agencies to issue a cease
and desist order "when the physical integrity of the national cultural treasures or important cultural
properties [is] found to be in danger of destruction or significant alteration from its original state."60
This law declares that the State should protect the "physical integrity" of the heritage property or
building if there is "danger of destruction or significant alteration from its original state." Physical
integrity refers to the structure itself - how strong and sound the structure is. The same law does not
mention that another project, building, or property, not itself a heritage property or building, may be
the subject of a cease and desist order when it adversely affects the background view, vista, or sightline
of a heritage property or building. Thus, Republic Act No. 10066 cannot apply to the Torre de Manila
condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or 1property without due
process of law x x x." 61 It is a fundamental principle that no property shall be taken away from an
individual without due process, whether substantive or procedural. The dispossession of property, or in
this case the stoppage of the construction of a building in one's own property would violate substantive
due process.
The Rules on Civil Procedure are clear that mandamus only issues when there is a clear legal duty
imposed upon the office or the officer sought to be compelled to perform an act, and when the party
seeking mandamus has a clear legal right to the performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law, ordinance, or rule for that
matter, that the construction of a building outside the Rizal Park is prohibited if the building is within the
background sightline or view of the Rizal Monument. Thus, there is no legal duty on the part of the City
of Manila "to consider," in the words of the Dissenting Opinion, "the standards set under Ordinance No.
8119" in relation to the applications of DMCI-PDI for the Torre de Manila since under the ordinance
these standards can never be applied outside the boundaries of Rizal Park. While the Rizal Park has been
declared a National Historical Site, the area where Torre de Manila is being built is a privately-owned
property that is "not pap: of the Rizal Park that has been declared as a National Heritage Site in 1095,"
and the Torre de Manila area is in fact "well-beyond" the Rizal Park, according to NHCP Chairperson Dr.
Maria Serena I. Diokno. 62 Neither has the area of the Torre de Manila been designated as a "heritage
zone, a cultural property, a historical landmark or even a national treasure."63
Also, to declare that the City of Manila failed to consider the standards under Ordinance No. 8119 would
involve making a finding of fact. A finding lot fact requires notice, hearing, and the submission of
evidence to ascertain compliance with the law or regulation. In such a case, it is the Regional Trial Court
which has the jurisdiction to hear the case, receive evidence, make a proper finding of fact, and
determine whether the Torre de Manila project properly complied with the standards set by the
ordinance. In Meralco v. Public Service Commission, 64 we held that it is the cardinal right of a party in
trials and administrative proceedings to be heard, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof and to have such evidence
presented considered by the proper court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No. 8119 to the Torre de
Manila project will be an empty exercise since these standards cannot apply outside of the Rizal Park -
and the Torre de Manila is outside the Rizal Park. Mandamus will lie only if the officials
The KOR also invokes this Court's exercise of its extraordinary certiorari power of review under Section
1, Article VIII65 of the Constitution. However, this Court can only exercise its extraordinary certiorari
power if the City of Manila, in issuing the required permits and licenses, gravely abused its discretion
amounting to lack or excess of jurisdiction. Tellingly, neither the majority nor minority opinion in this
case has found that the City of Manila committed grave abuse of discretion in issuing the permits and
licenses to DMCI-PDI. Thus, there is no justification at all for this Court to exercise its extraordinary
certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited to actual cases and
controversies that necessarily involve a violation of the Constitution or the determination of the
constitutionality or validity of a governmental act or issuance. Specific violation of a statute that does
not raise the issue of constitutionality or validity of the statute cannot, as a rule, be the subject of the
Court's direct exercise of its expanded certiorari power. Thus, the KOR's recourse lies with other judicial
remedies or proceedings allowed under the Rules of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers
Association, Inc., 66 we held that in cases where the question of constitutionality of a governmental
action is raised, the judicial power that the courts exercise is likewise identified as the power of judicial
review - the power to review the constitutionality of the actions of other branches of government. As a
rule, as required by the hierarchy of courts principle, these cases are filed with the lowest court with
jurisdiction over the 1subject matter. The judicial review that the courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial power;
2) the person challenging the act must have "standing" to challenge; he must have a personal and
substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement;
3) the question of constitutionality must be raised at the earliest possible opportunity; and
4) the issue of constitutionality must be the very lismota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme Court through the
appeal process, through a petition for review on certiorari under Rule 45 of the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an original petition for
injunction which we later on treated as one for mandamus under Rule 65. There is, however, no clear
legal duty on the City of Manila to consider the provisions of Ordinance No. 8119 for applications for
permits to build outside the protected areas of the Rizal Park. Even if there were such legal duty, the
determination of whether the City of .Manila failed to abide by this legal duty would involve factual
matters which have not been admitted or established in this case. Establishing factual matters is not
within the realm of this Court. Findings of fact are the province of the trial courts.
There is no standard in Ordinance No. 8119 for defining or determining the background sightline that is
supposed to be protected or that is part of the "physical integrity" of the Rizal Monument. How far
should a building like the Torre de Manila be from the Rizal Monument - one, two, three, four, or five
kilometers? Even the Solicitor General, during the Oral Arguments, conceded that the ordinance does
not prescribe how sightline is determined, neither is there any way to measure by metes and bounds
whether al construction that is not part of the historic monument itself or is outside the protected area
can be said to violate the Rizal Monument's physicalintegrity, except only to say "when you stand in
front of the Rizal Monument, there can be no doubt that your view is marred and impaired." This kind of
a standard has no parameters and can include a sightline or a construction as far as the human eyes can
see when standing in front of the Rizal Monument. Obviously, this Court cannot apply such a subjective
and non-uniform standard that adversely affects property rights several kilometers away from a
historical sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous construction of its
own Ordinance, had failed to consider its duties under [Ordinance No. 8119] when it issued permits in
DMCI-PDI's favor." However, MZBAA Zoning Board Resolution Nos. 06 and 06-A67 easily dispel this
claim. According to the resolutions, the City of Manila, through the MZBAA, acted on DMCI-PDI's
application for variance under the powers and standards set forth in Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily in issuing said
resolution, the Court should respect MZBAA's exercise of discretion. The Court cannot "substitute its I
judgment :for that of said officials who are in a better position to consider and weigh the same in the
light of the authority specifically vested in them by law." 68 Since the Court has "no supervisory power
over the proceedings I and actions of the administrative departments of the government," it "should not
generally interfere with purely administrative and discretionary functions.; 69 The power of the Court in
mandamus petitions does not extend "to direct the exercise of judgment or discretion in a particular
way or the retraction or reversal of an action already taken in the exercise of either."70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of Manila, through the
CPDO, of the permits previously issued in favor of the Torre de Manila project to determine compliance
with the standards ]under Ordinance No. 8119. It also declares that the circumstances in this case
warrant the prohacvice conversion of the proceedings in the issuance of the permits into a "contested
case" necessitating notice and hearing with all the parties involved.
Prohac vice means a specific decision does not constitute a precedent because the decision is for the
specific case only, not to be followed in other cases. A prohac vice decision violates statutory law -
Article 8 of the Civil Code - which states that "judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines." The decision of the Court in this case
cannot be prohac vice because by mandate bf the law everydecision of the Court forms part of the legal
system of the Philippines. If another case comes up with the same facts as the present case, that case
must be decided in the same way as this case to comply with the constitutional mandate of equal
protection of the law. Thus, a prohac vice decision also violates the equal protection clause of the
Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts of the executive branch
unless there is a clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction.
Mandamus does not lie against the legislative and executive branches or their members acting in the
exercise of their official discretionary functions. This emanates from the respect accorded by the
judiciary to said branches as co-equal entities under the principle of separation of powers.
In De Castro v. Salas,71 we held that no rule of law is better established than the one that provides that
mandamus will not issue to control the discretion of an officer or a court when honestly exercised and
when such power and authority is not abused.
In exceptional cases, the Court has granted a prayer for mandamus to compel action in matters involving
judgment and discretion, only "to act, but not to act lone way or the other," 72 and only in cases where
there has been a clear showing of grave abuse of discretion, manifest injustice, or palpable excess of
authority.73
In this case, there can be no determination by this Court that the City of Manila had been negligent or
remiss in its duty under Ordinance No. 8119 considering that this determination will involve questions of
fact. DMCI- PDI had been issued the proper permits and had secured all approvals and licenses months
before the actual construction began. Even the KOR could not point to any law that respondent City of
Manila had violated and could only point to declarations of policies by the NHCP and the Venice Charter
which do not constitute clear legal bases for the issuance of a writ of mandam1s.
The Venice Charter is merely a codification of guiding principles for the preservation and restoration of
ancient monuments, sites, and buildings. It brings I together principles in the field of historical
conservation and restoration that have been developed, agreed upon, and and laid down by experts
over the years. Each country, however, remains "responsible for applying the plan within the framework
of its own culture and traditions."74
The Venice Charter is not a treaty and therefore does not become enforceable as law. The Philippines is
not legally bound to follow its directive, as in fact, these are not directives but mere guidelines - a set of
the best practices and techniques that have been proven over the years to be the most effective in
preserving and restoring historical monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without going through the
process under Ordinance No. 8119. However, the same was properly rectified when, faced with
mounting opposition, DMCI-PDI itself sought clarification from the City of Manila and immediately
began complying with the procedure for applying for a variance. The MZBAA did subsequently
recommend the approval of the variance and the City Council of Manila approved the same, ratifying
the licenses and permits already given to DMCI-PDI. Such ratification was well within the right of the City
Council of Manila. The City Council of Manila could have denied the application had it seen any reason
to do so. Again, the ratification is a function of the City Council of Manila, an exercise of its discretion1
and well within the authority granted it by law and the City's own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health, convenience, and welfare. There is
no indication that the Torre de Manila project brings any harm, danger, or hazard to the people in the
surrounding areas except that the building allegedly poses an unsightly view on the taking of photos or
the visual appreciation of the Rizal Monument by locals and tourists. In fact, the Court must take the
approval of the MZBAA, and its subsequent ratification by the City Council of Manila, as the duly
authorized exercise of discretion by the city officials. Great care must be taken that the Court does not
unduly tread upon the local government's performance of its duties. It is not for this Court to dictate
upon the other branches bf the government how their discretion must be exercised so long as these
branches do not commit grave abuse of discretion amounting to lack or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper case and before the
proper forum. It is not within the power of this Court in this case to make such determination. Without
such determination, this Court cannot simply declare that the City of Manila had failed to consider its
duties under Ordinance No. 8119 when it issued the permits in DMCI-PDI's favor without making a
finding of fact how the City of Manila failed "to consider" its duties with respect to areas outside the
boundaries of the Rizal Park. In the first place, this Court has no jurisdiction to make findings of fact in an
original action like this before this Court. Moreover the City of Manila could not legally apply standards
to sites outside the area covered by the ordinance that prescribed the standards. With this, I taken in
light of the lack of finding that there was grave abuse of discretion I on the part of the City of Manila,
there is no basis to issue the writ of mandamus against the City of Manila.
During the Oral Arguments, it was established that the granting of a variance neither uncommon nor
irregular. On the contrary, current practice has made granting of a variance the rule rather than the
exception:
JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium that stand alone, in other
words not part of a commercial complex or an industrial complex ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City of Manila, the FAR 4, correct?
ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or industrial projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when it comes to condominiums in
commercial areas, Your Honor.
JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
JUITICE CARPIO: ... residential condominiums...
ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
JUSTICE CARPIO: And the percentage of land occupancy is always 60 percent.

ATTY. FLAMINIANO: 60 percent correct, Your Honor.
JUSTICE CARPIO: Okay ... how many square meters is this Torre de Manila?
xxx
ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ... 5,556.
JUSTICE CARPIO: So, it's almost half a hectare.
JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4, is that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.

JUSTICE CARPIO: ... buildable, the rest not buildable.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila anywhere you go, you look at
stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
JUSTICE CARPIO: And the buildable area is to the edge of the property ...it's not 60 percent, correct?
JUSTICE CARPIO: So, if you look at all the ... residential buildings in the last ten years, they [have] all
variances. They did not follow the original FAR 4 or the 60 percent (of land occupancy). Every residential
building that stand alone was a variance. ATTY. FLAMINIANO: That's correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of Manila is variance, and the exception which is never
followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will have to get a variance because it doesn't make sense to follow
FAR 4 because the land is so expensive and if you can build only two storeys on a 1,000-square meter
lot, you will surely lose money, correct? ATTY. FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be used as a basis to grant the mandamus petition
absent any clear finding that said act amo'1nted to "grave abuse of discretion, manifest injustice, or
palpable excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de Manila project. The KOR
itself came up with the idea to build a structure right behind the Rizal Monument that would dwarf the
Rizal Monument.
In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC) l formulated a plan to build an
Educational Center within the Rizal Park. In July 1955, the KOR proposed the inclusion of a national
theater on the site of the Educational Center. The JRNCC adopted the proposal. The following[ year, a
law - Republic Act No. 142776 - authorized the establishment of the Jose Rizal National Cultural Shrine
consisting of a national theater, a national museum, and a national library on a single site. 77
To be built on the open space right behind the 12.7 meter high Rizal Monument were: the KOR's
proposed nationaltheater, standing 29.25 meters high and 286 meters in distance from the Rizal
Monument; the nationallibrary, standing 25 .6 meters high and 180 meters in distance from the Rizal
;Monument, with its rear along San Luis Street (now T.M. Kalaw Street); and facing it, the
nationalmuseum, at 19.5 meters high and 190 meters in I distance from the Rizal Monument, with its
back along P. Burgos Street. 78
However, several sectors voiced their objections to the construction for various reasons. Among them,
the need to preserve the open space of the park, the high cost of construction, the desecration of the
park's hallowed grounds, and the fact that the proposed cultural center including the 129.25 meter high
national theater proposed by the KOR would dwarf the 12.7 meter high Rizal Monument. 79 The JRNCC
revised the plan and only the National Library - which still stands today - was built. 80
According to the NHCP, the KOR even proposed to build a Rizal Center on the park as recently as
2013.81 The proposal was disapproved by the NHCR and the Department of Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would have dwarfed the Rizal
Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the rear of the Rizal
Monument - approximately 870 meters from the Rizal Monument and 3 0 meters from the edge of Rizal
Park. 82
It is a basic principle that "one who seeks equity and justice must come to court with clean hands. "83 In
Jenosa v. Delariarte, 84 the Court reiterated ,that he who seeks equity must do equity, and he who
comes into equity must come with clean hands. This "signifies that a litigant may be denied relief by a
court of equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent,
or deceitful as to the controversy in issue. " 85 Thus, the KOR, having earlier proposed a national theater
a mere 286meters in distance from the back of the Rizal Monument that would have dwarfed the Rizal
Monument, comes to this I Court with unclean hands. It is now precluded from "seeking any equitable
refuge" 86 from the Court. The KOR's petition should be dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a nuisance perse that deserves to be
summarily abated even without judicial proceedings. 87 However, during the Oral Arguments, counsel
for the KOR argued that the KOR now believes that the Torre de Manila is a nuisance per accidens and
not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as any act, omission, establishment, business, condition
of property, or anything else which: (1) injures or endangers the health or safety of others; (2) annoys or
offends the senses; (3) shocks, defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water; or (5) hinders or impairs the use
of property.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on "recognized as a nuisance
under any and all circumstances, because it constitutes a direct menace to public health or safety, and,
for that reason, may be abated summarily under the undefined law of necessity." 89 The second,
nuisance peraccidens, is that which "depends upon certain conditions and circumstances, and its
existence being a question of fact, it cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing in law constitutes a nuisance. "90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre de Manila project
cannot be considered as a "direct menace to I public health or safety." Not only is a condominium
project commonplace in the City of Manila, DMCI-PDI has, according to the proper government
agencies, complied with health and safety standards set by law. DMCI-PDI has been granted the
following permits and clearances prior to starting the project: (1) Height Clearance Permit from the Civil
Aviation Authority of the Philippines;91 (2) Development Permit from the HLURB;92 (3) Zoning
Certification from the HLURB;93 (4) Certificate of Environmental Compliance Commitment from the
Environment Management Bureau of the Department of Environment and Natural Resources;94 (5)
Barangay Clearance95 (6) Zoning Permit;96 (7) Building Permit;97 (8) and Electrical and Mechanical
Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by the MZBAA and
granted by the City Council of Manila. Thus, there can be no doubt that the Torre de Manila project is
not a nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding conditions and

circumstances. These conditions and circumstances must be well established, not merely alleged. The
Court cannot simply accept these conditions and circumstances as established facts as the KOR would
have us do in this case. 99 The KOR itself concedes that the question of whether the Torre de Manila is a
nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to estimate their force, and
to apply rules of law to the case thus made. 101 1lhis Court is no such authority. It is not a trier of facts.
It cannot simply take the allegations in the petition and accept these as facts, more so in this case where
these allegations are contested by the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The question, then, of whether
the Torre de Manila project is a nuisance peraccidens must be settled after due proceedings brought
before the proper Regional Trial Court. The KOR cannot circumvent the process in the guise be
protecting national culture and heritage.
The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further injury102 until final
adjudication on the merits of the case. In the present case, since the legal rights of the KOR are not well-
defined, clear, and certain, the petition for mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of I administrative agencies when they are
supported by substantial evidence. In this case, DMCI-PDI already acquired vested rights in the various
permits, licenses, or even variances it had applied for in order to build a 49-storey building which is, and
had been, allowed by the City of Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary decisions or actions of
administrative agencies in the absence of proof that such decisions or actions were arrived at with grave
abuse of discretion amounting to lack or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103 we held that mandamus is the proper remedy if it could be shown
that there was neglect on the part of a tribunal in the performance of an act which the law specifically
enjoins as a duty, or there was an unlawful exclusion of a party from the use and enjoyment be a right to
which he is clearly entitled. Only specific legal rights may be enforced by mandamus if they are clear and
certain. If the legal rights of th6 petitioner are not well-defined, definite, clear, and certain, 104 the
petition must be dismissed. Stated otherwise, the writ never issues in doubtful cases. It neither confers
powers nor imposes duties. It is simply a command to exercise a power already possessed and to
perform a duty already imposed. 105
In sum, bearing in mind the Court does not intervene in discretionary acts of the executive department
in the absence of grave abuse of discretion, 106 and considering that mandamus may only be issued to
enforce a clear and certain legal right, 107 the present special civil action for mandamus must be
dismissed and the TRO issued earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios, the poem he left for his family
the night before he was executed, Rizal wrote:
Yo muero cuando veo que el cielo se colora
Y al fin anuncia el dia tras lobrego capuz 108
[Ako’y mamamatay, ngayong namamalas
na sa Silanganan ay namamanaag
yaong maligayang araw na sisikat
sa likod ng luksang nagtabing na ulap.] 109
[I die just when I see the dawn break,
Through the gloom of night, to herald the day] 110
Yet at the point of his execution, he was made to stand facing West towards Manila Bay, with his back to
the firing squad, like the traitor the colonial government wished to portray him. He asked to face his
executioners, facing the East where the sun would be rising since it was early morning, but the Spanish
captain did not allow it. As he was shot and a single bullet struck his frail body, Rizal forced himself, with
his last remaining strength, to turn around to face the East and thus he fell on his back with] his face to
the sky and the rising sun. Then, the Spanish captain approached Rizal and finished him off with one
pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb, marked with a cross and
a stone with only his name and the date of his birth and death; no anniversary celebrations; and
interment at Paang Bundok (now, the Manila North Cemetery). Rizal never wanted his grave to be a
burden to future generations.
The letter never made it to his family and his wishes were not carried out. The letter was discovered
many years later, in 1953. By then, his remains had been entombed at the Rizal Monument, countless
anniversaries had been . celebrated, with memorials and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry; to the point of reaching
oblivion or obscurity in the future. 111 For Rizal's life was never about fame or vainglory, but for the
country he loved dearly and for which he gave up his life.
The Rizal Monument is expressly against Rizal' s own wishes. That Rizal's statue now stands facing West
towards Manila Bay, with Rizal's back to the East, adds salt to the wound. If we continue the present
orientation of Rizal's statue, with Rizal facing West, we would be like the Spanish captain who refused
Rizal's request to die facing the rising sun in the East. On the other hand, if Rizal' s statue is made to face
East, as Rizal had desired when he was about to be shot, the background - the blue sky above Manila
Bay - would forever be clear of obstruction, and we would be faithful to Rizal's dying wish.
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The Temporary Restraining
Order issued by the Court on 16 June 2015 is LIFTED effective immediately.

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EMILIO GANCAYCO, petitioner, vs.

CITY GOVERNMENT OF QUEZON CITY AND METRO MANILA

G.R. No. 177933. October 11, 2011.*

SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

The facts are stated in the opinion of the Court.

The City Attorney for respondent City Government of Quezon City.

3 Formerly 808 Highway 54.

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

meters and covered by Transfer Certificate of Title (TCT) No. RT114558.

4 Rollo (G.R. No. 177933), pp. 29-31.

SUPREME COURT REPORTS ANNOTATED

6 Rollo (G.R. No. 177933), p. 32.

8 Id., at pp. 33-37.

9 Presidential Decree No. 1096.

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

10 Rollo (G.R. No. 177933), p. 38.

11 Id., at pp. 39-55.

12 Id., at pp. 149-165.

SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

13 Id., at pp. 166-173.

14 Id., at pp. 77-85.

15 Note that the questioned ordinance is Ordinance No. 2904.

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

16 Rollo (G.R. No. 177933), pp. 86-107.

SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

II. WHETHER OR NOT ORDINANCE NO. 2904 IS CONSTITUTIONAL.

18 Note that the questioned ordinance is Ordinance No. 2904.

19 Id., at pp. 108-116.

20 Rollo (G.R. No. 177807), pp. 81-83.

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

The Court’s Ruling

Moreover, in Acebedo Optical Company, Inc. v. Court of Appeals,21 we held:

21 385 Phil. 956, 978; 329 SCRA 314, 335 (2000).

SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

Recently, in British American Tobacco v. Camacho,22 we likewise held:

22 G.R. No. 163583, 20 August 2008, 562 SCRA 511, 537.

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

Zoning and the regulation of the

construction of buildings are valid

exercises of police power.

23 385 Phil. 586, 601-602; 328 SCRA 836, 843-844 (2000).

24 Enacted on 16 June 1950.

Gancayco vs. City Government of Quezon City

VOL. 658, OCTOBER 11, 2011

Gancayco vs. City Government of Quezon City

safety or welfare must have a reasonable relation to the end in view.

In Carlos Superdrug v. Department of Social Welfare and Development,27 we also held:

27 G.R. No. 166494, 29 June 2007, 526 SCRA 130, 144.

SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City