FELICIDAD VILLANUEVA, FERNANDO CAISIP, ANTONIO LIANG, FELINA MIRANDA, RICARDO PUNO, FLORENCIO, LAXA, AND RENE OCAMPO, PETITIONERS, VS. HON. MARIANO CASTANEDA, JR., PRESIDING JUD…

There is in the vicinity of the public market of San
Fernando, Pampanga, along Mercado
street, a
strip of land measuring 12 by 77
meters on which stands a conglomeration of vendors stalls together
forming what is commonly known as a talipapa.  This
is the subject of the herein petition. 
The petitioners claim they have a right to remain in and conduct
business in this area by virtue of a previous authorization granted to them by
the municipal government.  The respondents
deny this and justify the demolition of their stalls as illegal constructions
on public property.  At the petitioners’
behest, we have issued a temporary
restraining order to preserve the status quo between the parties
pending our decision.^[1]
Now we shall rule on the merits.

This dispute goes back to November
7, 1961, when the municipal council of San
Fernando adopted Resolution No. 218 authorizing some
24 members of the Fernandino United Merchants and
Traders Association to construct permanent stalls and sell in the
above-mentioned place.^[2]
The action was protested on November
10, 1961, in Civil Case No. 2040, where the Court of First Instance
of Pampanga, Branch 2 issued a writ of preliminary
injunction that prevented the defendants from constructing the said stalls
until final resolution of the controversy.^[3]
On January 18, 1964, while this case was pending, the municipal council of San
Fernando adopted Resolution No. 29, which declared the subject area as
“the parking place and as the public plaza of the municipality,”^[4]
thereby impliedly revoking Resolution No. 218, series of 1961.  Four years later, on November 2, 1968, Judge
Andres C. Aguilar decided the aforesaid case and held that the land occupied by
the petitioners, being public in nature, was beyond the commerce of man and
therefore could not be the subject of private occupancy.^[5]
The writ of preliminary injunction was made permanent.^[6]

The decision was apparently not enforced, for the petitioners
were not evicted from the place; in fact, according to them, they and the 128
other persons were in 1971 assigned specific areas or space allotments therein
for which they paid daily fees to the municipal government.^[7]
The problem appears to have festered for some more years under a presumably
uneasy truce among the protagonists, none of whom made any move, for some
reason that does not appear in the record. 
Then, on January 12, 1982,
the Association of Concerned Citizens and Consumers of San Fernando filed a petition for the immediate
implementation of Resolution No. 29, to restore the subject property “to
its original and customary use as a public plaza.”^[8]

Acting thereon after an investigation conducted by the municipal
attorney,^[9]
respondent Vicente A. Macalino, as officer-in-charge
of the office of the mayor of San Fernando,
issued on June 14, 1982, a
resolution requiring the municipal treasurer and the municipal engineer to
demolish the stalls in the subject place beginning July 1, 1982.^[10]
The reaction of the petitioners was to file a petition for prohibition with the
Court of First Instance of Pampanga, docketed as
Civil Case No. 6470, on June 26, 1982.  The respondent judge denied the petition on July 19, 1982,^[11]
and the motion for reconsideration on August
5, 1982,^[12]
prompting the petitioners to come to this Court on certiorari to
challenge his decision.^[13]

As required, respondent Macalino filed
his comment^[14]
on the petition, and the petitioners countered with their reply.^[15]
In compliance with our resolution of February
2, 1983, the petitioners submitted their memorandum^[16]
and respondent Macalino, for his part, asked that his
comment be considered his memorandum.^[17]
On July 28, 1986, the new officer-in-charge of the office of the mayor of San
Fernando, Paterno S. Guevarra,
was impleaded in lieu of Virgilio
Sanchez, who had himself earlier replaced the original respondent Macalino.^[18]

After considering the issues and the arguments raised by the
parties in their respective pleadings, we rule for the respondents.  The petition must be dismissed.

There is no question that the place occupied by the petitioners
and from which they are sought to be evicted is a public plaza, as found by the
trial court in Civil Case No. 2040.  This
finding was made after consideration
of the antecedent facts as especially established by the testimony of former
San Fernando Mayor Rodolfo Hizon, who later became
governor of Pampanga, that the National Planning
Commission had reserved the area for a public plaza as early as 1951.  This intention was reiterated in 1964 through
the adoption of Resolution No. 29.^[19]

It does not appear that the decision in this case was appealed or
has been reversed.  In Civil Case No.
6740, which is the subject of this petition, the respondent judge saw no reason
to disturb the finding in Civil Case No. 2040 and indeed used it as a basis for his own decision sustaining
the questioned order.^[20]

The basic contention of the petitioners is that the disputed area
is under lease to them by virtue of contracts they had entered into with the
municipal government, first in 1961 insofar as the original occupants were
concerned, and later with them and the other petitioners by virtue of the space
allocations made in their favor in 1971 for which they say they are paying
daily fees.^[21]
The municipal government has denied making such agreements.  In any case, they argue, since the fees were
collected daily, the leases, assuming their validity, could be terminated at
will, or any day, as the claimed rentals indicated that the period of the
leases was from day to day.^[22]

The parties be labor this argument needlessly.

A public plaza is beyond the commerce of man and so cannot be the
subject of lease or any other contractual undertaking.  This is elementary.  Indeed, this point was settled as early as in
Municipality of Cavite v. Rojas,^[23]
decided in 1915, where the Court declared as null and void the lease of a public
plaza of the said municipality in favor of a private person.

Justice Torres said in that case:

“According to article 344 of the Civil Code:  ‘Property for public use in provinces and in
towns comprises the provincial and town roads, the squares, streets, fountains,
and public waters, the promenades, and public works of general service
supported by said towns or provinces.’

“The said Plaza Soledad being a promenade for public use, the
municipal council of Cavite could not in 1907
withdraw or exclude from public use a portion
thereof in order to lease it for the sole benefit of the defendant Hilaria Rojas.  In
leasing a portion of said plaza
or public place to the defendant for private use the plaintiff municipality
exceeded its authority in the exercise of its powers by executing a contract over a thing of which it
could not dispose, nor is it empowered so to do.

“The Civil Code, article 1271, prescribes that everything
which is not outside the commerce of man may be the object of a contract, and
plazas and streets are outside of this commerce, as was decided by the supreme court of Spain in its decision of
February 12, 1895, which says:  ‘Communal
things that cannot be sold because they are by their very nature outside of
commerce are those for public use, such as the plazas, streets, common lands,
rivers, fountains, etc.’

“Therefore, it must be concluded that the contract, Exhibit C, whereby the municipality of Cavite leased to Hilaria Rojas a portion
of the Plaza Soledad is null and void and of no force or effect, because it is
contrary to the law and the thing leased cannot be the object of a
contract.”

In Muyot v. de la Fuente,^[24]
it was held that the City of Manila
could not lease a portion of a public
sidewalk on Plaza Sta. Cruz, being likewise beyond the commerce of man.

Echoing Rojas, the decision said:

“Appellants claim that they had obtained permit from the
government of the City of Manila,
to construct booths Nos. 1 and 2, along the premises in question, and for the
use of spaces where the booths were constructed, they had paid and continued
paying the corresponding rentals. 
Granting this claim to be true, one should not entertain any doubt that
such permit was not legal, because the City of Manila
does not have any power or authority at all to lease a portion of a public sidewalk. 
The sidewalk in question, forming part of the public plaza
of Sta. Cruz, could not be a proper
subject matter of the contract, as it
was not within the commerce of man (Article 1347, new Civil Code, and article
1271, old Civil Code).  Any contract
entered into by the City of Manila
in connection with the sidewalk, is ipso facto null and ultra
vires. 
(Municipality of Cavite vs. Roxas, et al., 30 Phil. 603.) The sidewalk in question was
intended for and was used by the public, in going from one place to another.
‘The streets and public places of the city shall be kept free and clear for the
use of the public, and the sidewalks and crossings for the pedestrians, and the
same shall only be used or occupied for other purposes as provided by ordinance
or regulation; x x x.’ (Sec. 1119, Revised Ordinances
of the City of Manila.) The booths in question served as fruit stands for their
owners and often, if not always, blocked the free passage of pedestrians who
had to take the plaza itself which used to be clogged with vehicular
traffic.”

Exactly in point is Espiritu v.
Municipal Council of Pozorrubio,^[25]
where the Supreme Court declared:

“There is absolutely no question that the town plaza cannot be
used for the construction of market stalls, specially of residences, and that
such structures constitute a nuisance subject to abatement according to
law.  Town plazas are properties of
public dominion, to be devoted to public use and to be made available to the
public in general.  They are outside the
commerce of man and cannot be disposed of or even leased by the municipality to private parties.”

Applying this well-settled doctrine, we rule that the petitioners
had no right in the first place to occupy the disputed premises and cannot
insist in remaining there now on the strength of their alleged lease
contracts.  They should have realized and accepted this earlier, considering that even
before Civil Case No. 2040 was decided, the municipal council of San Fernando
had already adopted Resolution No. 29, series of 1964, declaring the area as
the parking place and public plaza of the municipality.

It is the decision in Civil Case No. 2040 and the said resolution
of the municipal council of San Fernando
that respondent Macalino was seeking to enforce when
he ordered the demolition of the stalls constructed in the disputed area.  As officer-in-charge of the office of the
mayor, he had the duty to clear the area and restore it to its intended use as
a parking place and public plaza of the municipality
of San Fernando, conformably to the
aforementioned orders from the court and the council.  It is,
therefore, not correct to say that he had acted without authority or
taken the law into his hands in issuing his order.

Neither can it be said that he acted whimsically in exercising
his authority for it has been established that he directed the demolition of
the stalls only after, upon his instructions, the municipal attorney had
conducted an investigation, to look into the complaint filed by the Association
of Concerned Citizens and Consumers of San Fernando.^[26]
There is evidence that the petitioners were notified of this hearing,^[27]
which they chose to disregard. 
Photographs of the disputed area,^[28]
which does look congested and ugly, show that the complaint was valid and that
the area really needed to be cleared, as recommended by the municipal attorney.

The Court observes that even without such investigation and
recommendation, the respondent mayor was justified in ordering the area cleared
on the strength alone of its status as a
public plaza as declared by the judicial and legislative
authorities.  In calling first for the
investigation (which the petitioner saw fit to boycott), he was just
scrupulously paying deference to the requirements of due process, to remove all
taint of arbitrariness in the action he was called upon to take.

Since the occupation of the place in question in 1961 by the
original 24 stallholders (whose number later ballooned to almost 200), it has
deteriorated increasingly to the great prejudice of the community in
general.  The proliferation of stalls
therein, most of them makeshift and of flammable materials, has converted it
into a veritable fire trap, which, added to the fact that it obstructs access
to and from the public market itself, has seriously endangered public
safety.  The filthy condition of the talipapa, where fish and other wet items are
sold, has aggravated health and sanitation problems, besides pervading the
place with a foul odor that has spread into the surrounding areas.  The entire place is unsightly, to the dismay
and embarrassment of the inhabitants, who want it converted into a showcase
of the town of which they can all be proud. 
The vendors in the talipapa have also
spilled into the street and obstruct the flow of traffic, thereby impairing the
convenience of motorists and pedestrians alike. 
The regular stallholders in the public market, who pay substantial
rentals to the municipality, are deprived of a sizable volume of business from
prospective customers who are intercepted by the talipapa
vendors before they can reach the market proper.  On top of all these, the people are denied
the proper use of the place as a public plaza, where they may spend their
leisure in a relaxed and even beautiful environment and civic and other
communal activities of the town can be held.

The problems caused by the usurpation of the place by the
petitioners are covered by the police power as delegated to the municipality
under the general welfare clause.^[29]
This authorizes the municipal council “to enact such ordinances and make
such regulations, not repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon it by law and such as shall seem
necessary and proper to provide for the health and safety, promote the
prosperity, improve the morals, peace, good order, comfort, and convenience of
the municipality and the inhabitants thereof, and for the protection of
property therein.” This authority was validly exercised in this case
through the adoption of Resolution No. 29, series of 1964, by the the municipal council of San Fernando.

Even assuming a valid lease of the property in dispute, the resolution could have
effectively terminated the agreement for it is settled that the police power
cannot be surrendered or bargained away through the medium of a contract.^[30] In fact, every contract affecting the public
interest suffers a congenital infirmity in that it contains an implied
reservation of the police power as a postulate of the
existing legal order.^[31] This power can be activated at any time to
change the provisions of the contract, or even abrogate it entirely, for the
promotion or protection of the general welfare. 
Such an act will not militate against the impairment clause, which is
subject to and limited by the paramount police power.^[32]

We hold that the
respondent judge did not commit grave abuse of discretion in denying the
petition for prohibition.  On the
contrary, he acted correctly in sustaining the right and responsibility of the
mayor to evict the petitioners from the disputed area and clear it of all the
structures illegally constructed therein.

The Court feels that it
would have been far more amiable if the petitioners themselves, recognizing
their own civic duty, had at the outset desisted from their original stance and
withdrawn in good grace from the disputed area to permit its peaceful
restoration as a public plaza and parking place for the benefit of the whole
municipality.  They owed this little
sacrifice to the community in general, which has suffered all these many years
because of their intransigence. 
Regrettably, they have refused to recognize that in the truly
democratic society, the interests of the few should yield to those of the
greater number in deference to the principles that the welfare of the people is
the supreme law and overriding purpose. 
We do not see any altruism here. 
The traditional ties of sharing are absent here.  What we find, sad to say, is a cynical disdaining of the spirit
of “bayanihan,” a selfish rejection of the cordial virtues of “pakikisama” and “pagbibigayan”
which are the hallmarks of our people.

WHEREFORE, the petition is DISMISSED.  The decision dated July 19, 1982, and the order dated August 5, 1982, are AFFIRMED.  The temporary restraining order dated August 9, 1982, is LIFTED.  This decision is immediately executory.  Costs
against the petitioners.

SO ORDERED.

Teehankee, C.J., Narvasa,
and Paras,
JJ., concur.

Gancayco, J., on leave.

^[1]
Rollo, pp. 47-48.

^[2]
Ibid., p. 33.

^[3]
Id., p. 67.

^[4]
Id., p. 65.

^[5]
Id., pp. 68-71

^[6]
Id., p. 72.

^[7]
Id., 4.

^[8]
Id., pp. 75-76.

^[9]
Id., pp. 10-12.

^[10]
Id., pp. 10-12.

^[11]
Id., pp. 30-39.

^[12]
Id., p. 44.

^[13]
Id., pp. 3-8.

^[14]
Id., pp. 55-64.

^[15]
Id., pp. 98-101.

^[16]
Id., pp. 126-130.

^[17]
Id., pp. 120-121.

^[18]
Id., p. 177.

^[19]
Id., pp. 69-70.

^[20]
Id., pp. 30-39.

^[21]
Id., p. 30.

^[22]
Id., p. 32.

^[23]
30 Phil. 602.

^[24]
G.R. No. L-6534, 48 O.G. 4860.

^[25]
102 Phil. 869-870.

^[26]
Rollo,
pp. 32-34.

^[27]
Ibid., p. 84.

^[28]
Id., p. 82.

^[29]
Section 2238, Revised Administrative Code.

^[30]
16 C.S.S. 549; 37 Am. Jur. 901.

^[31]
Stone v. Mississipi,
101 U.S. 814.

^[32]
Ortigas &
Co. v. Feati Bank, 94 SCRA 533.