LEVY D. MACASIANO, BRIGADIER GENERAL/PNP SUPERINTENDENT, METROPOLITAN TRAFFIC COMMAND, PETITIONER, VS. HONORABLE ROBERTO C. DIOKNO, PRESIDING JUDGE, BRANCH 62, REGIONAL TRIAL CO…

This is a petition for certiorari under Rule 65 of the
Rules of Court seeking the annulment of the decision of the Regional Trial
Court of Makati, Branch 62, which granted the writ of preliminary injunction
applied for by respondents Municipality of Parañaque and Palanyag Kilusang
Bayan for Service (Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance
No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran,
Parañaque, Metro Manila and the establishment of a flea market thereon. The said ordinance was approved by the
municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing
and regulating the use of certain city and/or municipal streets, roads and open
spaces within Metropolitan Manila as sites for flea market and/or vending
areas, under certain terms and conditions.

On July 20, 1990, the Metropolitan Manila Authority approved
Ordinance No. 86, s. 1990 of the municipal council of respondent municipality
subject to the following conditions:

1. That the aforenamed streets are not used for vehicular traffic,
and that the majority of the residents do not oppose the establishment of the
flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides of the
road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall
be clearly designated;

4. That the use of the vending areas shall be temporary and shall
be closed once the reclaimed areas are developed and donated by the Public
Estate Authority.

On June 20, 1990, the municipal council of Parañaque issued a
resolution authorizing Parañaque Mayor Walfrido N. Ferrer to enter into
contract with any service cooperative for the establishment, operation,
maintenance and management of flea markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent
Palanyag, a service cooperative, entered into an agreement whereby the latter
shall operate, maintain and manage the flea market in the aforementioned
streets with the obligation to remit dues to the treasury of the municipal
government of Parañaque. Consequently,
market stalls were put up by respondent Palanyag on the said streets.

On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP
Superintendent of the Metropolitan Traffic Command, ordered the destruction and
confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent
Palanyag.

On October 16, 1990, petitioner Brig. General Macasiano wrote a
letter to respondent Palanyag giving the latter ten (10) days to discontinue
the flea market; otherwise, the market stalls shall be dismantled.

Hence, on October 23, 1990, respondents municipality and Palanyag
filed with the trial court a joint petition for prohibition and mandamus
with damages and prayer for preliminary injunction, to which the petitioner
filed his memorandum/opposition to the issuance of the writ of preliminary
injunction.

On October 24, 1990, the trial court issued a temporary
restraining order to enjoin petitioner from enforcing his letter-order of
October 16, 1990 pending the hearing on the motion for writ of preliminary
injunction.

On December 17, 1990, the trial court issued an order upholding
the validity of Ordinance No. 86 s. 1990 of the Municipality of Parañaque and
enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order
against respondent Palanyag.

Hence, this petition was filed by the petitioner thru the Office
of the Solicitor General alleging grave abuse of discretion tantamount to lack
or excess of jurisdiction on the part of the trial judge in issuing the
assailed order.

The sole issue to be resolved in this case is whether or not an
ordinance or resolution issued by the municipal council of Parañaque
authorizing the lease and use of public streets or thoroughfares as sites for
flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that
municipal roads are used for public service and are therefore public
properties; that as such, they cannot be subject to private appropriation or
private contract by any person, even by the respondent Municipality of
Parañaque. Petitioner submits that a
property already dedicated to public use cannot be used for another public
purpose and that absent a clear showing that the Municipality of Parañaque has
been granted by the legislature a specific authority to convert a property
already in public use to another public use, respondent municipality is,
therefore, bereft of any authority to close municipal roads for the
establishment of a flea market. Petitioner also submits that assuming that the respondent municipality
is authorized to close streets, it failed to comply with the conditions set
forth by the Metropolitan Manila Authority for the approval of the ordinance
providing for the establishment of flea markets on public streets. Lastly, petitioner contends that by allowing
the municipal streets to be used by market vendors, the municipal council of
respondent municipality violated its duty under the Local Government Code to
promote the general welfare of the residents of the municipality.

In upholding the legality of the disputed ordinance, the trial
court ruled:

“x x x that Chapter II Section 10 of the Local Government Code
is a statutory grant of power given to local government units, the Municipality
of Parañaque as such, is empowered under that law to close its roads, streets
or alley subject to limitations stated therein (i.e. that it is in accordance
with existing laws and the provisions of this code).

“x x x

“The actuation of the respondent Brig. Gen. Levi Macasiano,
though apparently within its power is in fact an encroachment of power legally
vested to the municipality, precisely because when the municipality enacted the
ordinance in question — the authority of the respondent as Police
Superintendent ceases to be operative on the ground that the streets covered by
the ordinance ceases to be a public thoroughfare.” (pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the
disputed municipal ordinance authorizing the flea market on the public streets
is valid, it is necessary to examine the laws in force during the time the said
ordinance was enacted, namely, Batas Pambansa Blg. 337, otherwise known as
Local Government Code, ‘in connection with established principles embodied in
the Civil Code on property and settled jurisprudence on the matter.

The property of provinces, cities and municipalities is divided
into property for public use and patrimonial property (Art. 423, Civil
Code). As to what consists of property
for public use, Article 424 of Civil Code states:

“ART. 424. Property for public use, in the provinces, cities
and municipalities, consists of the provincial roads, city streets, the
squares, fountains, public waters, promenades, and public works for public
service paid for by said provinces, cities or municipalities.

“All other property possessed by any of them is patrimonial
and shall be governed by this Code, without prejudice to the provisions of
special laws.”

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt.
Gacia Extension and Opena streets are local roads used for public service and
are therefore considered public properties of respondent municipality. Properties of the local government which are
devoted to public service are deemed public and are under the absolute control
of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440,
March 28, 1968, 22 SCRA 1334). Hence,
local governments have no authority whatsoever to control or regulate the use
of public properties unless specific authority is vested upon them by
Congress. One such example of this authority
given by Congress to the local governments is the power to close roads as
provided in Section 10, Chapter II of the Local Government Code, which states:

“SEC. 10. Closure of roads. — A local government unit may
likewise, through its head acting pursuant to a resolution of its sangguniang
and in accordance with existing law and
the provisions this Code, close any barangay,
municipal, city or provincial road, street, alley, park or square. No such way or place
or any part thereof shall be closed
without indemnifying any person prejudiced thereby. A property thus withdrawn
from public use may be used or conveyed for any purpose
for which other real property belonging to the local unit concerned might be
lawfully used or conveyed.” (Emphasis ours).

However, the aforestated legal provision which gives authority to
local government units to close roads and other similar public places should be
read and interpreted in accordance with basic principles already established by
law. These basic principles have the
effect of limiting such authority of the province, city or municipality to
close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic principle that
properties of public dominion devoted to public use and made available to the
public in general are outside the commerce of man and cannot be disposed of or
leased by the local government unit to private persons. Aside from the requirement of due process
which should be complied with before closing a road, street or park, the
closure should be for the sole purpose of withdrawing the road or other public
property from public use when circumstances show that such property is no
longer intended or necessary for public use or public service. When it is already withdrawn from public
use, the property then becomes patrimonial property of the local government
unit concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles,
et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only then that the respondent municipality
can “use or convey them for any purpose for which other real property
belonging to the local unit concerned might be lawfully used or conveyed”
in accordance with the last sentence of Section 10, Chapter II of Blg. 333,
known as Local Government Code. In one
case, the City Council of Cebu, through a resolution, declared the terminal
road of M. Borces Street, Mabolo, Cebu City as an abandoned road, the same not
being included in the City Development Plan. Thereafter, the City Council passed another resolution authorizing the
sale of the said abandoned road through public bidding. We held therein that the City of Cebu is
empowered to close a city street and to vacate or withdraw the same from public
use. Such withdrawn portion becomes
patrimonial property which can be the object of an ordinary contract (Cebu
Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No. L-40474, August
29, 1975, 66 SCRA 481). However, those
roads and streets which are available to the public in general and ordinarily
used for vehicular traffic are still considered public property devoted to
public use. In such case, the local
government has no power to use it for another purpose or to dispose of or lease
it to private persons. This limitation
on the authority of the local government over public properties has been
discussed and settled by this Court en banc in “Francisco v.
Dacanay, petitioner v. Mayor Macario Asistio, Jr., et al., respondents., G.R.
No. 93654, May 6, 1992.” This Court ruled:

“There is no doubt that the disputed areas from which the
private respondents’ market stalls are sought to be evicted are public streets,
as found by the trial court in Civil Case no. C-12921. A public street is property for public use
hence outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may
not be the subject of lease or other contract (Villanueva, et al. v. Castañeda
and Macalino, 15 SCRA 142 citing the Municipality of Cavite v. Rojas, 30 SCRA
602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; and Muyot v.
De la Fuente, 48 O.G. 4860).

“As the stallholders pay fees to the City Government for the
right to occupy portions of the public street, the City Government, contrary to
law, has been leasing portions of the streets to them. Such leases or licenses null and void for
being contrary to law. The right of the
public to use the city streets may not be bargained away through contract. The interests of a few should not prevail
over the good of the greater number in the community whose health, peace,
safety, good order and general welfare, the respondent city officials are under
legal obligation to protect.

“The Executive Order issued by acting Mayor Robles authorizing
the use of Heroes del ’96 Street as a vending area for stallholders who were
granted licenses by the city government contravenes the general law that
reserves city streets and roads for public use. Mayor Robles’ Executive Order may not infringe upon the vested right
of the public to use city streets for the purpose they were intended to serve;
i.e., as arteries of travel for vehicles and pedestrians.”

Even assuming, in gratia argumenti, that
respondent municipality has the authority to pass the disputed ordinance, the same
cannot be validly implemented because it cannot be considered approved by the
Metropolitan Manila Authority due to non-compliance by respondent municipality
of the conditions imposed by the former for the approval of the ordinance, to
wit:

1. That the aforenamed streets are not used for vehicular traffic,
and that the majority of the residents do(es) not oppose the establishment of
the flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending
area shall be marked distinctly, and that the 2 meters on both sides of the
road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall
be clearly designated;

4. That the use of the vending areas shall be temporary and shall
be closed once the reclaimed areas are developed and donated by the Public
Estate Authority. (p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it
has complied with the foregoing conditions precedent to the approval of the
ordinance. The allegations of
respondent municipality that the closed streets were not used for vehicular
traffic and that the majority of the residents do not oppose the establishment
of a flea market on said streets are unsupported by any evidence that will show
that this first condition has been met. Likewise, the designation by respondents of a time schedule during which
the flea market shall operate is absent.

Further, it is of public notice that the streets along Baclaran
area are congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J.
Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets in
Baclaran would not help in solving the problem of congestion. We take note of the other observations of
the Solicitor General when he said:

“x x x. There have been many instances of emergencies and
fires where ambulances and fire engines, instead of using the roads for a more
direct access to the fire area, have to maneuver and look for other streets
which are not occupied by stalls and vendors thereby losing valuable time which
could, otherwise, have been spent in saving properties and lives.

“Along G.G. Cruz Street is a hospital, the St. Rita
Hospital. However, its ambulances and
the people rushing their patients to the hospital cannot pass through G.G. Cruz
because of the stalls and the vendors. One can only imagine the tragedy of losing a life just because of a few
seconds delay brought about by the inaccessibility of the streets leading to
the hospital.

“The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal
transportation flow is disrupted and school children have to get off at a
distance still far from their schools and walk, rain or shine.

“Indeed one can only imagine the garbage and litter left by
vendors on the streets at the end of the day. Needless to say, these cause further, pollution, sickness and
deterioration of health of the residents therein.” (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings and
observations of petitioners. Instead,
respondents want this Court to focus its attention solely on the argument that
the use of public spaces for the establishment of a flea market is well within
the powers granted by law to a local government which should not be interfered
with by the courts.

Verily, the powers of a local government unit are not
absolute. They are subject to
limitations laid down by the Constitution and the laws such as our Civil
Code. Moreover, the exercise of such
powers should be subservient to paramount considerations of health and
well-being of the members of the community. Every local government unit has the sworn obligation to enact measures
that will enhance the public health, safety and convenience, maintain peace and
order, and promote the general prosperity of the inhabitants of the local
units. Based on this objective, the
local government should refrain from acting towards that which might prejudice
or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have
a legal right to demand the demolition of the illegally constructed stalls in
public roads and streets and the officials of respondent municipality have the
corresponding duty arising from public office to clear the city streets and
restore them to their specific public purpose.

The instant case as well as the Dacanay case, involves an
ordinance which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at
this point, We find it worthy to note that Batas Pambansa Blg. 337, known as
Local Government Code, has already been repealed by Republic Act No. 7160 known
as Local Government Code of 1991 which took effect on January 1, 1992. Section 5(d) of the new Code provides that
rights and obligations existing on the date of effectivity of the new Code and
arising out of contracts or any other source of prestation involving a local
government unit shall be governed by the original terms and conditions of the
said contracts or the law in force at the time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of
the respondent Regional Trial Court dated December 17, 1990 which granted the
writ of preliminary injunction enjoining petitioner as PNP Superintendent,
Metropolitan Traffic Command from enforcing the demolition of market stalls
along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets
is hereby REVERSED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin,
Grino-Aquino, Regalado, Davide, Jr., Romero, Nocon, and Bellosillo, JJ., concur.