Gancayco Vs Govt QC

11/27/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 658
G.R. No. 177807. October 11, 2011.*
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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http://www.central.com.ph/sfsreader/session/0000016752a11aa10c65491e003600fb002c009e/t/?o=False 1/20
* 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.
855
VOL. 658, OCTOBER 11, 2011 855

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-
_______________
4 Rollo (G.R. No. 177933), pp. 29-31.
5 Definitions, “Annex A,” National Building Code, Presidential Decree
No. 1096.
856
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
_______________
6 Rollo (G.R. No. 177933), p. 32.
7 Id., at p. 7.
8 Id., at pp. 33-37.
9 Presidential Decree No. 1096.
857
VOL. 658, OCTOBER 11, 2011 857

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

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
_______________
13 Id., at pp. 166-173.
14 Id., at pp. 77-85.
15 Note that the questioned ordinance is Ordinance No. 2904.
859
VOL. 658, OCTOBER 11, 2011 859

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

“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
19
Reconsideration.
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.
_______________
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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VOL. 658, OCTOBER 11, 2011 861

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).
862

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.
_______________
22 G.R. No. 163583, 20 August 2008, 562 SCRA 511, 537.
863
VOL. 658, OCTOBER 11, 2011 863

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

“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.
865
VOL. 658, OCTOBER 11, 2011 865

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
_______________
27 G.R. No. 166494, 29 June 2007, 526 SCRA 130, 144.
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
_______________
28 Presidential Decree No. 1096.
867
VOL. 658, OCTOBER 11, 2011 867

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
_______________
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

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.
_______________
30 G.R. No. 166744, 2 November 2006, 506 SCRA 625, 660-661.
869
VOL. 658, OCTOBER 11, 2011 869

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

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

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
Quezon 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——
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11/27/2018 SUPREME COURT REPORTS ANNOTATED VOLUME 658

G.R. No. 177807. October 11, 2011.*

EMILIO GANCAYCO, petitioner, vs. CITY

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

METRO MANILA DEVELOPMENT AUTHORITY,

Civil Law; Nuisance; A nuisance per se is that which affects

854 SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

per se; nor can it authorize the extrajudicial condemnation

PETITIONS for review on certiorari of the decision and

In the early 1950s, retired Justice Emilio A. Gancayco

VOL. 658, OCTOBER 11, 2011 855

meters and covered by Transfer Certificate of Title (TCT)

856 SUPREME COURT REPORTS ANNOTATED

Gancayco vs. City Government of Quezon City

ary were exempted by Ordinance No. 60-4477 from the

VOL. 658, OCTOBER 11, 2011 857

Justice Gancayco fifteen (15) days to clear the portion of

858 SUPREME COURT REPORTS ANNOTATED

that Justice Gancayco was already barred by estoppel,

“WHEREFORE, the petition is hereby granted and the Court

The MMDA thereafter appealed from the Decision of the

VOL. 658, OCTOBER 11, 2011 859

granted the appeal.16 The CA upheld the validity of

enforcement and implementation of the ordinance. In so

“Even with the requirement of the construction of arcaded

Nevertheless, the CA held that the MMDA went beyond

860 SUPREME COURT REPORTS ANNOTATED

“WHEREFORE, the appeals are PARTLY GRANTED. The

1) The validity and constitutionality of Ordinance No. 2094,18

This ruling prompted the MMDA and Justice Gancayco

I. WHETHER OR NOT JUSTICE GANCAYCO WAS ESTOPPED

VOL. 658, OCTOBER 11, 2011 861

The Court’s Ruling

whether the ordinance “takes” private property without

“It is therefore decisively clear that estoppel cannot apply in

862 SUPREME COURT REPORTS ANNOTATED

act which is otherwise null and void or ultra vires.”

Recently, in British American Tobacco v. Camacho,22 we

“We find that petitioner was not guilty of estoppel. When it

Anent the second ground, we find that Justice Gancayco

VOL. 658, OCTOBER 11, 2011 863

Zoning and the regulation of the

“Police power is an inherent attribute of sovereignty. It has

It bears stressing that police power is lodged primarily in the

To resolve the issue on the constitutionality of the

864 SUPREME COURT REPORTS ANNOTATED

“To make such further ordinances and regulations not

Specifically, on the powers of the city government to

Sangguniang Panlungsod of Manila City enacted an

“In the exercise of police power, property rights of individuals

VOL. 658, OCTOBER 11, 2011 865

safety or welfare must have a reasonable relation to the

In Carlos Superdrug v. Department of Social Welfare

“For this reason, when the conditions so demand as determined

In the case at bar, it is clear that the primary objectives

866 SUPREME COURT REPORTS ANNOTATED

health and safety of the city and its inhabitants; the

“Section 102. Declaration of Policy.—It is hereby declared to be