ALFREDO ABERIN AND OTHERS NAMED IT THE LIST APPENDED TO ANNEX “A” OF THE BASIC PETITION IN THE TRIAL COURT, AND HONORABLE LOURDES P. SAN DIEGO, THEN PRESIDING JUDGE OF BRANCH IX…

This is a petition for review on certiorari of the
decision of the Court of Appeals in C.A-G.R. No. 37968-R, entitled ”Quezon City, et al. vs. Hon. Lourdes P. San Diego, Judge,
Court of First Instance (C.F.I.) of Rizal, Branch IX,
Quezon City, et al.”, granting the petition for certiorari
with preliminary injunction and setting aside the order of execution dated
August 1, 1966, issued by the trial court in Civil Case No. Q-8129 thereof,
entitled “Alfredo Aberin, et al. vs. Quezon City, et al.”

The case arose from the following facts:

1.     
Petitioners Alfredo Aberin,
et al., all licensed vendors of fresh meat, fruits, vegetables, fish and other perishable
goods and stall holders in the city markets of Kamuning,
Camp Murphy
and Project 2, Quezon City,
filed Civil Case No. Q-8129, of the C.F.I. of Rizal, Quezon City Branch (IX), for certiorari, prohibition,
mandamus, and/or declaratory relief with preliminary injunction against Quezon City and its Mayor, Norberto S. Amoranto,
Nereo J. Paculdo and Gloria
G. Paculdo as proprietors and operators of the
private market, Nepa-Q-Mart; Mariano Sta. Romana, Jr., as Vice Mayor; and Eduardo T. Paredes, Saturnino V. Bermudez, Romulo G. Lucasan and Florentino A. Lapuz, as members
of the Quezon City Council.  The case aims to establish as “ultra vires, null and void, without force and effect”, the
contract to operate the market and slaughterhouse allegedly entered into
illegally between Quezon City and the Paculdos, as authorized by Quezon
City Council Resolution No. 6750, S-64, which granted the questioned contract
or “franchise”;

2.     
Petitioners Aberin, et
al., claimed to have suffered a diminution of their business because of the
alleged illegal operation by the Paculdos of the Nepa-Q-Mart with the sanction and approval of the Quezon City officials cited as
respondents in that case;

3.     
Both parties in Civil Case No. Q-8129 entered
into a partial stipulation of facts, agreeing to submit for decision the
validity of the questioned contract; or as to whether or not it was executed
within the corporate powers of Quezon City and,
whether or not it was executed in a regular and valid manner; whether or not
petitioners had capacity to question the contract, and whether or not the
petition is proper and valid in form and substance;

4.     
Hon. Lourdes P. San Diego, then judge of the
C.F.I. of Rizal, Branch IX, Quezon City, decided Civil Case
No. Q-8129, in favor of the petitioners, finding and declaring the contract executed
between Quezon City
and the Paculdos without lawful authority and not
pursuant to any valid resolution of the Quezon City
Council; that petitioners had the capacity to bring the action and are entitled
to the relief sought, the procedure followed being valid and proper.  The dispositive
part of the decision dated March 28,
1966 reads:

“FOR ALL THE FOREGOING CONSIDERATIONS, the Court holds and
declares that the contract (Exhibit ‘E’) and the resolutions authorizing and
approving it (Exhibits ‘A’ and ‘G’) are ultra vires,
null and void, and without force and effect, and the respondents are all
directed to refrain from enforcing or in any manner allowing the enforcement
thereof.  The respondent City Mayor is
ordered to forthwith revoke, cancel and withdraw any and all permits and
authorizations issued to respondent Paculdo for the
operation of the Nepa-Q-Mart slaughterhouse and the
sale of perishable goods, except that the operation of a private shopping
center therein for the sale of non-perishable goods shall remain
unaffected.  No pronouncements as to
costs and attorney’s fees.”

5.     
Petitioners filed a motion for immediate
execution of the aforementioned decision on April 18, 1966, contending that the
case “greatly affects public interest and the injunctive relief granted in
the decision must be immediately enforced”, for “the delays occasioned by
appeal are such that they may extend beyond the terms of the respondent city
officials which will expire in 1967”, and that “no amount of supersedeas bonds can adequately protect the public
interest that will suffer by non-enforcement of the decision”;

6.     
Respondents in Civil Case No. Q-8129 opposed
said motion for immediate execution on the principal ground that a writ of
immediate execution pending appeal can only be issued under Sec. 2 of Rule 39,
Rules of Court, when there are good reasons for doing so and there are no such
good reasons in this case;

7.     
Then trial Judge Lourdes P. San Diego of the
C.F.I. of Rizal, Branch IX, Quezon
City, granted the motion for immediate execution in an order dated August 1,
1966, ordering that “without prejudice to the appeal of the respondents
taking its course upon their compliance with the requirements for appeal, let a
writ of execution be issued forthwith to enforce the Decision of this Court,
upon petitioners’ posting a bond of P100,000.00”.

8.     
The aforementioned order for immediate execution
was elevated by certiorari with preliminary injunction to the respondent
Court of Appeals which granted the writ and set aside the order in C.A. Case
No. 37968-R.

The questioned decision of respondent Court of Appeals in C.A.
No. 37968-R now before us for review shows that three Appellate Justices^[1]
constituting the majority of a Special Division of Five believed that the
appellate court acquired jurisdiction over the case because the main case
included not only questions of law (validity of the contract and ultra vires acts of Quezon City) but
also questions of fact (whether or not therein respondents Paculdo
failed to meet conditions pertaining to sanitation of the market and to provide
for proper cold storage).  The majority
opinion held that “the question of the herein petitioners’ (Quezon City officials) supposed ‘official excesses’, which
have abetted the operation of the Nepa-Q-Mart, is
something best left for resolution in the main appeal”.  Consequently the appellate court granted the
petition and set aside the lower court’s order of immediate execution pending
appeal, dated August 1, 1966.

Pending the Court’s deliberation on the case for determination of
the issues, respondent Paculdo filed his
manifestation dated October 31, 1976
furnishing the Court with copy of the lower court’s Order dated October 25, 1976 dismissing the
mother case as moot and academic.

Required to comment thereon, the Quezon
City Government, through its city attorney, Jose T. Torcuator,
“express(ed) its conformity to the motion and manifestation of
co-respondents Nereo J. Paculdo
and Gloria G. Paculdo as well as to the Order of October
25, 1976 of the Court of First Instance of Rizal (Quezon City Branch IX) dismissing the mother case for being
moot and academic”, as per its comment dated November 15, 1976.

Petitioners in their comment dated November 22, 1976 filed through their counsel, Gregorio
R. Puruganan, likewise expressed their conformity to
the dismissal of the case for having become moot and academic as follows:

“1.  An on-the-spot investigation conducted at the
premises of the NEPA-Q-MART Slaughterhouse owned by the respondent Nereo J. Paculdo confirms that
said slaughterhouse is no longer in operation, as stated in the certification
of the City Veterinarian of Quezon City dated
September 9, 1976 which is attached as Annex ‘2’ of said respondent’s
‘Manifestation’ dated October 31, 1976;

“2.    Likewise, the respondent Paculdo’s
market was burned down by the fire that took place on February 7, 1972, and the
undersigned counsel has found out that the present market was reconstructed
under the authority of Resolution No. 9314 passed by the City Council of Quezon City on February 13, 1973;

“3.    The respondents in the mother case below
(Civil Case No. Q-8129) include the former City Mayor and former Councilors of Quezon City who are now no longer in office, and the acts
complained of by herein petitioners in the lower court refer to the contract
which was authorized and allowed by said respondents; there being a change of
the situation as of this date, the case has truly become moot and academic;

“4.    In view of the fact that what remains pending
now before this Honorable Court is only the propriety of the lower court’s
order of execution pending appeal, and said order being intended to enforce the
decision of the lower court which has become moot and academic, there are no
more acts which can be complained of by herein petitioners.”

ACCORDINGLY, the petition at bar is dismissed for having
become moot and academic.  No costs.

Makasiar, Antonio, Muñoz Palma, and Concepcion, Jr., JJ.,
concur.

* Special
Division of Five Justices, composed of Rodriguez, J., ponente; Lucero, Yatco,
Perez and Martin, JJ.

^[1]
Composed of Justices Jose S. Rodriguez, ponente,
Nicasio A. Yatco and Ruperto G. Martin. 
Dissenting were Justices Antonio G. Lucero and Jesus Y. Perez.