Carlos superdrug vs DSWD
(DOF).[9]
This is a petition[1] for Prohibition with Prayer for Preliminary
Injunction assailing the constitutionality of Section 4(a) of
Republic Act (R.A.) No. 9257,[2] otherwise known as the Expanded
Senior Citizens Act of 2003.
Petitioners are domestic corporations and proprietors operating
drugstores in the Philippines.
Public respondents, on the other hand, include the Department of
Social Welfare and Development (DSWD), the Department of
Health (DOH), the Department of Finance (DOF), the Department
of Justice (DOJ), and the Department of Interior and Local
Government (DILG) which have been specifically tasked to
monitor the drugstores compliance with the law; promulgate the
implementing rules and regulations for the effective
implementation of the law; and prosecute and revoke the licenses
of erring drugstore establishments.
The antecedents are as follows:
On February 26, 2004, R.A. No. 9257, amending R.A. No. 7432,[3]
was signed into law by President Gloria Macapagal-Arroyo and it
became effective on March 21, 2004. Section 4(a) of the Act
states:
SEC. 4. Privileges for the Senior Citizens. The senior citizens shall
be entitled to the following:
(a) the grant of twenty percent (20%) discount from all
establishments relative to the utilization of services in hotels and
similar lodging establishments, restaurants and recreation
centers, and purchase of medicines in all establishments for the
exclusive use or enjoyment of senior citizens, including funeral
and burial services for the death of senior citizens;
...
The establishment may claim the discounts granted under (a), (f),
(g) and (h) as tax deduction based on the net cost of the goods
sold or services rendered: Provided, That the cost of the discount
shall be allowed as deduction from gross income for the same
taxable year that the discount is granted. Provided, further, That
the total amount of the claimed tax deduction net of value added
tax if applicable, shall be included in their gross sales receipts for
tax purposes and shall be subject to proper documentation and to
the provisions of the National Internal Revenue Code, as
amended.[4]
On May 28, 2004, the DSWD approved and adopted the
Implementing Rules and Regulations of R.A. No. 9257, Rule VI,
Article 8 of which states:
Article 8. Tax Deduction of Establishments. The establishment may
claim the discounts granted under Rule V, Section 4 Discounts for
Establishments;[5] Section 9, Medical and Dental Services in
Private Facilities[,][6] and Sections 10[7] and 11[8] Air, Sea and
Land Transportation as tax deduction based on the net cost of the
goods sold or services rendered. Provided, That the cost of the
discount shall be allowed as deduction from gross income for the
same taxable year that the discount is granted; Provided, further,
That the total amount of the claimed tax deduction net of value
added tax if applicable, shall be included in their gross sales
receipts for tax purposes and shall be subject to proper
documentation and to the provisions of the National Internal
Revenue Code, as amended; Provided, finally, that the
implementation of the tax deduction shall be subject to the
Revenue Regulations to be issued by the Bureau of Internal
Revenue (BIR) and approved by the Department of Finance
On July 10, 2004, in reference to the query of the Drug Stores
Association of the Philippines (DSAP) concerning the meaning of a
tax deduction under the Expanded Senior Citizens Act, the DOF,
through Director IV Ma. Lourdes B. Recente, clarified as follows:
1) The difference between the Tax Credit (under the Old Senior
Citizens Act) and Tax Deduction (under the Expanded Senior
Citizens Act).
1.1. The provision of Section 4 of R.A. No. 7432 (the old Senior
Citizens Act) grants twenty percent (20%) discount from all
establishments relative to the utilization of transportation
services, hotels and similar lodging establishment, restaurants and
recreation centers and purchase of medicines anywhere in the
country, the costs of which may be claimed by the private
establishments concerned as tax credit.
Effectively, a tax credit is a peso-for-peso deduction from a
taxpayers tax liability due to the government of the amount of
discounts such establishment has granted to a senior citizen. The
establishment recovers the full amount of discount given to a
senior citizen and hence, the government shoulders 100% of the
discounts granted.
It must be noted, however, that conceptually, a tax credit scheme
under the Philippine tax system, necessitates that prior payments
of taxes have been made and the taxpayer is attempting to
recover this tax payment from his/her income tax due. The tax
credit scheme under R.A. No. 7432 is, therefore, inapplicable since
no tax payments have previously occurred.
1.2. The provision under R.A. No. 9257, on the other hand,
provides that the establishment concerned may claim the
discounts under Section 4(a), (f), (g) and (h) as tax deduction from
gross income, based on the net cost of goods sold or services
rendered.
Under this scheme, the establishment concerned is allowed to
deduct from gross income, in computing for its tax liability, the
amount of discounts granted to senior citizens. Effectively, the
government loses in terms of foregone revenues an amount
equivalent to the marginal tax rate the said establishment is liable
to pay the government. This will be an amount equivalent to 32%
of the twenty percent (20%) discounts so granted. The
establishment shoulders the remaining portion of the granted
discounts.
It may be necessary to note that while the burden on [the]
government is slightly diminished in terms of its percentage share
on the discounts granted to senior citizens, the number of
potential establishments that may claim tax deductions, have
however, been broadened. Aside from the establishments that
may claim tax credits under the old law, more establishments
were added under the new law such as: establishments providing
medical and dental services, diagnostic and laboratory services,
including professional fees of attending doctors in all private
hospitals and medical facilities, operators of domestic air and sea
transport services, public railways and skyways and bus transport
services.
A simple illustration might help amplify the points discussed
above, as follows:
Tax Deduction Tax Credit
Gross Sales x x x x x x x x x x x x
Less : Cost of goods sold x x x x x x x x x x
Net Sales x x x x x x x x x x x x
Less: Operating Expenses:
Tax Deduction on Discounts x x x x --
Other deductions: x x x x x x x x
Net Taxable Income x x x x x x x x x x
Tax Due x x x x x x
Less: Tax Credit -- ______x x
Net Tax Due -- x x
As shown above, under a tax deduction scheme, the tax deduction
on discounts was subtracted from Net Sales together with other
deductions which are considered as operating expenses before
the Tax Due was computed based on the Net Taxable Income. On
the other hand, under a tax credit scheme, the amount of
discounts which is the tax credit item, was deducted directly from
the tax due amount.[10]
Meanwhile, on October 1, 2004, Administrative Order (A.O.) No.
171 or the Policies and Guidelines to Implement the Relevant
Provisions of Republic Act 9257, otherwise known as the
Expanded Senior Citizens Act of 2003[11] was issued by the DOH,
providing the grant of twenty percent (20%) discount in the
purchase of unbranded generic medicines from all establishments
dispensing medicines for the exclusive use of the senior citizens.
On November 12, 2004, the DOH issued Administrative Order No
177[12] amending A.O. No. 171. Under A.O. No. 177, the twenty
percent discount shall not be limited to the purchase of
unbranded generic medicines only, but shall extend to both
prescription and non-prescription medicines whether branded or
generic. Thus, it stated that [t]he grant of twenty percent (20%)
discount shall be provided in the purchase of medicines from all
establishments dispensing medicines for the exclusive use of the
senior citizens.
Petitioners assail the constitutionality of Section 4(a) of the
Expanded Senior Citizens Act based on the following grounds:[13]
1) The law is confiscatory because it infringes Art. III, Sec.
9 of the Constitution which provides that private property shall
not be taken for public use without just compensation;
2) It violates the equal protection clause (Art. III, Sec. 1)
enshrined in our Constitution which states that no person shall be
deprived of life, liberty or property without due process of law,
nor shall any person be denied of the equal protection of the laws;
and
3) The 20% discount on medicines violates the
constitutional guarantee in Article XIII, Section 11 that makes
essential goods, health and other social services available to all
people at affordable cost.[14]
Petitioners assert that Section 4(a) of the law is unconstitutional
because it constitutes deprivation of private property. Compelling
drugstore owners and establishments to grant the discount will
result in a loss of profit
and capital because 1) drugstores impose a mark-up of only 5% to
10% on branded medicines; and 2) the law failed to provide a
scheme whereby drugstores will be justly compensated for the
discount.
Examining petitioners arguments, it is apparent that what
petitioners are ultimately questioning is the validity of the tax
deduction scheme as a reimbursement mechanism for the twenty
percent (20%) discount that they extend to senior citizens.
Based on the afore-stated DOF Opinion, the tax deduction scheme
does not fully reimburse petitioners for the discount privilege
accorded to senior citizens. This is because the discount is treated
as a deduction, a tax-deductible expense that is subtracted from
the gross income and results in a lower taxable income. Stated
otherwise, it is an amount that is allowed by law[15] to reduce the
income prior to the application of the tax rate to compute the
amount of tax which is due.[16] Being a tax deduction, the
discount does not reduce taxes owed on a peso for peso basis but
merely offers a fractional reduction in taxes owed.
Theoretically, the treatment of the discount as a deduction
reduces the net income of the private establishments concerned.
The discounts given would have entered the coffers and formed
part of the gross sales of the private establishments, were it not
for R.A. No. 9257.
The permanent reduction in their total revenues is a forced
subsidy corresponding to the taking of private property for public
use or benefit.[17] This constitutes compensable taking for which
petitioners would ordinarily become entitled to a just
compensation.
Just compensation is defined as the full and fair equivalent of the
property taken from its owner by the expropriator. The measure is
not the takers gain but the owners loss. The word just is used to
intensify the meaning of the word compensation, and to convey
the idea that the equivalent to be rendered for the property to be
taken shall be real, substantial, full and ample.[18]
A tax deduction does not offer full reimbursement of the senior
citizen discount. As such, it would not meet the definition of just
compensation.[19]
Having said that, this raises the question of whether the State, in
promoting the health and welfare of a special group of citizens,
can impose upon private establishments the burden of partly
subsidizing a government program.
The Court believes so.
The Senior Citizens Act was enacted primarily to maximize the
contribution of senior citizens to nation-building, and to grant
benefits and privileges to them for their improvement and well-
being as the State considers them an integral part of our
society.[20]
The priority given to senior citizens finds its basis in the
Constitution as set forth in the law itself. Thus, the Act provides:
SEC. 2. Republic Act No. 7432 is hereby amended to read as
follows:
SECTION 1. Declaration of Policies and Objectives. Pursuant to
Article XV, Section 4 of the Constitution, it is the duty of the family
to take care of its elderly members while the State may design
programs of social security for them. In addition to this, Section 10
in the Declaration of Principles and State Policies provides: The
State shall provide social justice in all phases of national
development. Further, Article XIII, Section 11, provides: The State
shall adopt an integrated and comprehensive approach to health
development which shall endeavor to make essential goods,
health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the
underprivileged sick, elderly, disabled, women and children.
Consonant with these constitutional principles the following are
the declared policies of this Act:
(f) To recognize the important role of the private sector in the
improvement of the welfare of senior citizens and to actively seek
their partnership.[21]
To implement the above policy, the law grants a twenty percent
discount to senior citizens for medical and dental services, and
diagnostic and laboratory fees; admission fees charged by
theaters, concert halls, circuses, carnivals, and other similar places
of culture, leisure and amusement; fares for domestic land, air
and sea travel; utilization of services in hotels and similar lodging
establishments, restaurants and recreation centers; and
purchases of medicines for the exclusive use or enjoyment of
senior citizens. As a form of reimbursement, the law provides that
business establishments extending the twenty percent discount to
senior citizens may claim the discount as a tax deduction.
The law is a legitimate exercise of police power which, similar to
the power of eminent domain, has general welfare for its object.
Police power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its
comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and
circumstances, thus assuring the greatest benefits. [22]
Accordingly, it has been described as the most essential, insistent
and the least limitable of powers, extending as it does to all the
great public needs.[23] It is [t]he power vested in the legislature
by the constitution 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 of the subjects of the same.[24]
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.[25]
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.[26]
Given these, it is incorrect for petitioners to insist that the grant of
the senior citizen discount is unduly oppressive to their business,
because petitioners have not taken time to calculate correctly and
come up with a financial report, so that they have not been able
to show properly whether or not the tax deduction scheme really
works greatly to their disadvantage.[27]
In treating the discount as a tax deduction, petitioners insist that
they will incur losses because, referring to the DOF Opinion, for
every P1.00 senior citizen discount that petitioners would give,
P0.68 will be shouldered by them as only P0.32 will be refunded
by the government by way of a tax deduction.
To illustrate this point, petitioner Carlos Super Drug cited the anti-
hypertensive maintenance drug Norvasc as an example. According
to the latter, it acquires Norvasc from the distributors at P37.57
per tablet, and retails it at P39.60 (or at a margin of 5%). If it
grants a 20% discount to senior citizens or an amount equivalent
to P7.92, then it would have to sell Norvasc at P31.68 which
translates to a loss from capital of P5.89 per tablet. Even if the
government will allow a tax deduction, only P2.53 per tablet will
be refunded and not the full amount of the discount which is
P7.92. In short, only 32% of the 20% discount will be reimbursed
to the drugstores.[28]
Petitioners computation is flawed. For purposes of
reimbursement, the law states that the cost of the discount shall
be deducted from gross income,[29] the amount of income
derived from all sources before deducting allowable expenses,
which will result in net income. Here, petitioners tried to show a
loss on a per transaction basis, which should not be the case. An
income statement, showing an accounting of petitioners sales,
expenses, and net profit (or loss) for a given period could have
accurately reflected the effect of the discount on their income.
Absent any financial statement, petitioners cannot substantiate
their claim that they will be operating at a loss should they give
the discount. In addition, the computation was erroneously based
on the assumption that their customers consisted wholly of senior
citizens. Lastly, the 32% tax rate is to be imposed on income, not
on the amount of the discount.
Furthermore, it is unfair for petitioners to criticize the law because
they cannot raise the prices of their medicines given the cutthroat
nature of the players in the industry. It is a business decision on
the part of petitioners to peg the mark-up at 5%. Selling the
medicines below acquisition cost, as alleged by petitioners, is
merely a result of this decision. Inasmuch as pricing is a property
right, petitioners cannot reproach the law for being oppressive,
simply because they cannot afford to raise their prices for fear of
losing their customers to competition.
The Court is not oblivious of the retail side of the pharmaceutical
industry and the competitive pricing component of the business.
While the Constitution protects property rights, petitioners must
accept the realities of business and the State, in the exercise of
police power, can intervene in the operations of a business which
may result in an impairment of property rights in the process.
Moreover, the right to property has a social dimension. While
Article XIII of the Constitution provides the precept for the
protection of property, various laws and jurisprudence,
particularly on agrarian reform and the regulation of contracts
and public utilities, continuously serve as a reminder that the right
to property can be relinquished upon the command of the State
for the promotion of public good.[30]
Undeniably, the success of the senior citizens program rests
largely on the support imparted by petitioners and the other
private establishments concerned. This being the case, the means
employed in invoking the active participation of the private sector,
in order to achieve the purpose or objective of the law, is
reasonably and directly related. Without sufficient proof that
Section 4(a) of R.A. No. 9257 is arbitrary, and that the continued
implementation of the same would be unconscionably
detrimental to petitioners, the Court will refrain from quashing a
legislative act.[31]
WHEREFORE, the petition is DISMISSED for lack of merit.
Fernando vs st. scholastica
Before this Court is a petition for review on certiorari under Rule
45 of the Rules of Court, which seeks to set aside the December 1,
2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No.
75691.
The Facts
Respondents St. Scholasticas College (SSC) and St. Scholasticas
Academy-Marikina, Inc. (SSA-Marikina) are educational
institutions organized under the laws of the Republic of the
Philippines, with principal offices and business addresses at Leon
Guinto Street, Malate, Manila, and at West Drive, Marikina
Heights, Marikina City, respectively.2
Respondent SSC is the owner of four (4) parcels of land measuring
a total of 56,306.80 square meters, located in Marikina Heights
and covered by Transfer Certificate Title (TCT) No. 91537. Located
within the property are SSA-Marikina, the residence of the sisters
of the Benedictine Order, the formation house of the novices, and
the retirement house for the elderly sisters. The property is
enclosed by a tall concrete perimeter fence built some thirty (30)
years ago. Abutting the fence along the West Drive are buildings,
facilities, and other improvements.3
The petitioners are the officials of the City Government of
Marikina. On September 30, 1994, the Sangguniang Panlungsod of
Marikina City enacted Ordinance No. 192,4 entitled "Regulating
the Construction of Fences and Walls in the Municipality of
Marikina." In 1995 and 1998, Ordinance Nos. 2175 and 2006 were
enacted to amend Sections 7 and 5, respectively. Ordinance No.
192, as amended, is reproduced hereunder, as follows:
ORDINANCE No. 192
Series of 1994
ORDINANCE REGULATING THE CONSTRUCTION OF FENCES AND
WALLS IN THE MUNICIPALITY OF MARIKINA
WHEREAS, under Section 447.2 of Republic Act No. 7160
otherwise known as the Local Government Code of 1991
empowers the Sangguniang Bayan as the local legislative body of
the municipality to "x x x Prescribe reasonable limits and restraints
on the use of property within the jurisdiction of the municipality, x
x x";
WHEREAS the effort of the municipality to accelerate its economic
and physical development, coupled with urbanization and
modernization, makes imperative the adoption of an ordinance
which shall embody up-to-date and modern technical design in
the construction of fences of residential, commercial and
industrial buildings;
WHEREAS, Presidential Decree No. 1096, otherwise known as the
National Building Code of the Philippines, does not adequately
provide technical guidelines for the construction of fences, in
terms of design, construction, and criteria;
WHEREAS, the adoption of such technical standards shall provide
more efficient and effective enforcement of laws on public safety
and security;
WHEREAS, it has occurred in not just a few occasions that high
fences or walls did not actually discourage but, in fact, even
protected burglars, robbers, and other lawless elements from the
view of outsiders once they have gained ingress into these walls,
hence, fences not necessarily providing security, but becomes
itself a "security problem";
WHEREAS, to discourage, suppress or prevent the concealment of
prohibited or unlawful acts earlier enumerated, and as guardian of
the people of Marikina, the municipal government seeks to enact
and implement rules and ordinances to protect and promote the
health, safety and morals of its constituents;
WHEREAS, consistent too, with the "Clean and Green Program" of
the government, lowering of fences and walls shall encourage
people to plant more trees and ornamental plants in their yards,
and when visible, such trees and ornamental plants are expected
to create an aura of a clean, green and beautiful environment for
Marikeos;
WHEREAS, high fences are unsightly that, in the past, people
planted on sidewalks to "beautify" the faade of their residences
but, however, become hazards and obstructions to pedestrians;
WHEREAS, high and solid walls as fences are considered "un-
neighborly" preventing community members to easily
communicate and socialize and deemed to create "boxed-in"
mentality among the populace;
WHEREAS, to gather as wide-range of opinions and comments on
this proposal, and as a requirement of the Local Government Code
of 1991 (R.A. 7160), the Sangguniang Bayan of Marikina invited
presidents or officers of homeowners associations, and
commercial and industrial establishments in Marikina to two
public hearings held on July 28, 1994 and August 25, 1994;
WHEREAS, the rationale and mechanics of the proposed
ordinance were fully presented to the attendees and no
vehement objection was presented to the municipal government;
NOW, THEREFORE, BE IT ORDAINED BY THE SANGGUINANG
BAYAN OF MARIKINA IN SESSION DULY ASSEMBLED:
Section 1. Coverage: This Ordinance regulates the construction of
all fences, walls and gates on lots classified or used for residential,
commercial, industrial, or special purposes.
Section 2. Definition of Terms:
a. Front Yard refers to the area of the lot fronting a street, alley
or public thoroughfare.
b. Back Yard the part of the lot at the rear of the structure
constructed therein.
c. Open fence type of fence which allows a view of "thru-see" of
the inner yard and the improvements therein. (Examples: wrought
iron, wooden lattice, cyclone wire)
d. Front gate refers to the gate which serves as a passage of
persons or vehicles fronting a street, alley, or public thoroughfare.
Section 3. The standard height of fences or walls allowed under
this ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter
in height. Fences in excess of one (1) meter shall be of an open
fence type, at least eighty percent (80%) see-thru; and
(2) Fences on the side and back yard shall be in accordance with
the provisions of P.D. 1096 otherwise known as the National
Building Code.
Section 4. No fence of any kind shall be allowed in areas
specifically reserved or classified as parks.
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.7
Section 6. Exemption.
(1) The Ordinance does not cover perimeter walls of residential
subdivisions.
(2) When public safety or public welfare requires, the Sangguniang
Bayan may allow the construction and/or maintenance of walls
higher than as prescribed herein and shall issue a special permit or
exemption.
Section 7. Transitory Provision. Real property owners whose
existing fences and walls do not conform to the specifications
herein are allowed adequate period of time from the passage of
this Ordinance within which to conform, as follows:
(1) Residential houses eight (8) years
(2) Commercial establishments five (5) years

(3) Industrial establishments three (3) years
(4) Educational institutions five (5) years8 (public and privately
owned)
Section 8. Penalty. Walls found not conforming to the provisions
of this Ordinance shall be demolished by the municipal
government at the expense of the owner of the lot or structure.
Section 9. The Municipal Engineering Office is tasked to strictly
implement this ordinance, including the issuance of the necessary
implementing guidelines, issuance of building and fencing permits,
and demolition of non-conforming walls at the lapse of the grace
period herein provided.
Section 10. Repealing Clause. All existing Ordinances and
Resolutions, Rules and Regulations inconsistent with the foregoing
provisions are hereby repealed, amended or modified.
Section 11. Separability Clause. If for any reason or reasons, local
executive orders, rules and regulations or parts thereof in conflict
with this Ordinance are hereby repealed and/or modified
accordingly.
Section 12. Effectivity. This ordinance takes effect after
publication.
APPROVED: September 30, 1994
(Emphases supplied)
On April 2, 2000, the City Government of Marikina sent a letter to
the respondents ordering them to demolish and replace the fence
of their Marikina property to make it 80% see-thru, and, at the
same time, to move it back about six (6) meters to provide parking
space for vehicles to park.9 On April 26, 2000, the respondents
requested for an extension of time to comply with the directive.10
In response, the petitioners, through then City Mayor Bayani F.
Fernando, insisted on the enforcement of the subject ordinance.
Not in conformity, the respondents filed a petition for prohibition
with an application for a writ of preliminary injunction and
temporary restraining order before the Regional Trial Court,
Marikina, Branch 273 (RTC), docketed as SCA Case No. 2000-381-
MK.11
The respondents argued that the petitioners were acting in excess
of jurisdiction in enforcing Ordinance No. 192, asserting that such
contravenes Section 1, Article III of the 1987 Constitution. That
demolishing their fence and constructing it six (6) meters back
would result in the loss of at least 1,808.34 square meters, worth
about 9,041,700.00, along West Drive, and at least 1,954.02
square meters, worth roughly 9,770,100.00, along East Drive. It
would also result in the destruction of the garbage house, covered
walk, electric house, storage house, comfort rooms, guards room,
guards post, waiting area for visitors, waiting area for students,
Blessed Virgin Shrine, P.E. area, and the multi-purpose hall,
resulting in the permanent loss of their beneficial use. The
respondents, thus, asserted that the implementation of the
ordinance on their property would be tantamount to an
appropriation of property without due process of law; and that
the petitioners could only appropriate a portion of their property
through eminent domain. They also pointed out that the goal of
the provisions to deter lawless elements and criminality did not
exist as the solid concrete walls of the school had served as
sufficient protection for many years.12
The petitioners, on the other hand, countered that the ordinance
was a valid exercise of police power, by virtue of which, they could
restrain property rights for the protection of public safety, health,
morals, or the promotion of public convenience and general
prosperity.13
On June 30, 2000, the RTC issued a writ of preliminary injunction,
enjoining the petitioners from implementing the demolition of the
fence at SSCs Marikina property.14
Ruling of the RTC
On the merits, the RTC rendered a Decision,15 dated October 2,
2002, granting the petition and ordering the issuance of a writ of
prohibition commanding the petitioners to permanently desist
from enforcing or implementing Ordinance No. 192 on the
respondents property.
The RTC agreed with the respondents that the order of the
petitioners to demolish the fence at the SSC property in Marikina
and to move it back six (6) meters would amount to an
appropriation of property which could only be done through the
exercise of eminent domain. It held that the petitioners could not
take the respondents property under the guise of police power to
evade the payment of just compensation.
It did not give weight to the petitioners contention that the
parking space was for the benefit of the students and patrons of
SSA-Marikina, considering that the respondents were already
providing for sufficient parking in compliance with the standards
under Rule XIX of the National Building Code.
It further found that the 80% see-thru fence requirement could
run counter to the respondents right to privacy, considering that
the property also served as a residence of the Benedictine sisters,
who were entitled to some sense of privacy in their affairs. It also
found that the respondents were able to prove that the danger to
security had no basis in their case. Moreover, it held that the
purpose of beautification could not be used to justify the exercise
of police power.
It also observed that Section 7 of Ordinance No. 192, as amended,
provided for retroactive application. It held, however, that such
retroactive effect should not impair the respondents vested
substantive rights over the perimeter walls, the six-meter strips of
land along the walls, and the building, structures, facilities, and
improvements, which would be destroyed by the demolition of
the walls and the seizure of the strips of land.
The RTC also found untenable the petitioners argument that
Ordinance No. 192 was a remedial or curative statute intended to
correct the defects of buildings and structures, which were
brought about by the absence or insufficiency of laws. It ruled that
the assailed ordinance was neither remedial nor curative in
nature, considering that at the time the respondents perimeter
wall was built, the same was valid and legal, and the ordinance did
not refer to any previous legislation that it sought to correct.
The RTC noted that the petitioners could still take action to
expropriate the subject property through eminent domain.
The RTC, thus, disposed:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently
desist from enforcing or implementing Ordinance No. 192, Series
of 1994, as amended, on petitioners property in question located
at Marikina Heights, Marikina, Metro Manila.
No pronouncement as to costs.
SO ORDERED.16

Ruling of the CA
In its December 1, 2003 Decision, the CA dismissed the
petitioners appeal and affirmed the RTC decision.
The CA reasoned out that the objectives stated in Ordinance No.
192 did not justify the exercise of police power, as it did not only
seek to regulate, but also involved the taking of the respondents
property without due process of law. The respondents were
bound to lose an unquantifiable sense of security, the beneficial
use of their structures, and a total of 3,762.36 square meters of
property. It, thus, ruled that the assailed ordinance could not be
upheld as valid as it clearly invaded the personal and property
rights of the respondents and "[f]or being unreasonable, and
undue restraint of trade."17
It noted that although the petitioners complied with procedural
due process in enacting Ordinance No. 192, they failed to comply
with substantive due process. Hence, the failure of the
respondents to attend the public hearings in order to raise
objections did not amount to a waiver of their right to question
the validity of the ordinance.
The CA also shot down the argument that the five-meter setback
provision for parking was a legal easement, the use and ownership
of which would remain with, and inure to, the benefit of the
respondents for whom the easement was primarily intended. It
found that the real intent of the setback provision was to make
the parking space free for use by the public, considering that such
would cease to be for the exclusive use of the school and its
students as it would be situated outside school premises and
beyond the school administrations control.
In affirming the RTC ruling that the ordinance was not a curative
statute, the CA found that the petitioner failed to point out any
irregularity or invalidity in the provisions of the National Building
Code that required correction or cure. It noted that any correction
in the Code should be properly undertaken by the Congress and
not by the City Council of Marikina through an ordinance.
The CA, thus, disposed:
WHEREFORE, all foregoing premises considered, the instant
appeal is DENIED.1wphi1 The October 2, 2002 Decision and the
January 13, 2003 Order of the Regional Trial Court (RTC) of
Marikina City, Branch 273, granting petitioners-appellees petition
for Prohibition in SCA Case No. 2000-381-MK are hereby
AFFIRMED.
SO ORDERED.18
Aggrieved by the decision of the CA, the petitioners are now
before this Court presenting the following
ASSIGNMENT OF ERRORS
1. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN DECLARING THAT CITY ORDINANCE NO. 192, SERIES OF 1994 IS
NOT A VALID EXERCISE OF POLICE POWER;
2. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN RULING THAT THE AFOREMENTIONED ORDINANCE IS AN
EXERCISE OF THE CITY OF THE POWER OF EMINENT DOMAIN;
3. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN DECLARING THAT THE CITY VIOLATED THE DUE PROCESS
CLAUSE IN IMPLEMENTING ORDINANCE NO. 192, SERIES OF 1994;
AND
4. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED
IN RULING THAT THE ABOVE-MENTIONED ORDINANCE CANNOT
BE GIVEN RETROACTIVE APPLICATION.19
In this case, the petitioners admit that Section 5 of the assailed
ordinance, pertaining to the five-meter setback requirement is, as
held by the lower courts, invalid.20 Nonetheless, the petitioners
argue that such invalidity was subsequently cured by Zoning
Ordinance No. 303, series of 2000. They also contend that Section
3, relating to the 80% see-thru fence requirement, must be
complied with, as it remains to be valid.
Ruling of the Court
The ultimate question before the Court is whether Sections 3.1
and 5 of Ordinance No. 192 are valid exercises of police power by
the City Government of Marikina.
"Police power is the plenary power vested in the legislature to
make statutes and ordinances to promote the health, morals,
peace, education, good order or safety and general welfare of the
people."21 The State, through the legislature, has delegated the
exercise of police power to local government units, as agencies of
the State. This delegation of police power is embodied in Section
1622 of the Local Government Code of 1991 (R.A. No. 7160),
known as the General Welfare Clause,23 which has two branches.
"The first, known as the general legislative power, authorizes the
municipal council to enact ordinances and make regulations not
repugnant to law, as may be necessary to carry into effect and
discharge the powers and duties conferred upon the municipal
council by law. The second, known as the police power proper,
authorizes the municipality to enact ordinances as may be
necessary and proper for the health and safety, prosperity,
morals, peace, good order, comfort, and convenience of the
municipality and its inhabitants, and for the protection of their
property."24
White Light Corporation v. City of Manila,25 discusses the test of a
valid ordinance:
The test of a valid ordinance is well established. A long line of
decisions including City of Manila has held that for an ordinance to
be valid, it must not only be within the corporate powers of the
local government unit to enact and pass according to the
procedure prescribed by law, it must also conform to the
following substantive requirements: (1) must not contravene the
Constitution or any statute; (2) must not be unfair or oppressive;
(3) must not be partial or discriminatory; (4) must not prohibit but
may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.26
Ordinance No. 192 was passed by the City Council of Marikina in
the apparent exercise of its police power. To successfully invoke
the exercise of police power as the rationale for the enactment of
an ordinance and to free it from the imputation of constitutional
infirmity, two tests have been used by the Court the rational
relationship test and the strict scrutiny test:
We ourselves have often applied the rational basis test mainly in
analysis of equal protection challenges. Using the rational basis
examination, laws or ordinances are upheld if they rationally
further a legitimate governmental interest. Under intermediate
review, governmental interest is extensively examined and the
availability of less restrictive measures is considered. Applying
strict scrutiny, the focus is on the presence of compelling, rather
than substantial, governmental interest and on the absence of less
restrictive means for achieving that interest.27
Even without going to a discussion of the strict scrutiny test,
Ordinance No. 192, series of 1994 must be struck down for not
being reasonably necessary to accomplish the Citys purpose.
More importantly, it is oppressive of private rights.
Under the rational relationship test, an ordinance must pass the
following requisites as discussed in Social Justice Society (SJS) v.
Atienza, Jr.:28
As with the State, local governments may be considered as having
properly exercised their police power only if the following
requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require its exercise
and (2) the means employed are reasonably necessary for the
accomplishment of the purpose and not unduly oppressive upon
individuals. In short, there must be a concurrence of a lawful
subject and lawful method.29
Lacking a concurrence of these two requisites, the police power
measure shall be struck down as an arbitrary intrusion into private
rights and a violation of the due process clause.30
Section 3.1 and 5 of the assailed ordinance are pertinent to the
issue at hand, to wit:
Section 3. The standard height of fences of walls allowed under
this ordinance are as follows:
(1) Fences on the front yard shall be no more than one (1) meter
in height. Fences in excess of one (1) meter shall be an open fence
type, at least eighty percent (80%) see-thru;
Section 5. In no case shall walls and fences be built within the five
(5) meter parking area allowance located between the front
monument line and the building line of commercial and industrial
establishments and educational and religious institutions.
The respondents, thus, sought to prohibit the petitioners from
requiring them to (1) demolish their existing concrete wall, (2)
build a fence (in excess of one meter) which must be 80% see-
thru, and (3) build the said fence six meters back in order to
provide a parking area.
Setback Requirement
The Court first turns its attention to Section 5 which requires the
five-meter setback of the fence to provide for a parking area. The
petitioners initially argued that the ownership of the parking area
to be created would remain with the respondents as it would
primarily be for the use of its students and faculty, and that its use
by the public on non-school days would only be incidental. In their
Reply, however, the petitioners admitted that Section 5 was, in
fact, invalid for being repugnant to the Constitution.31
The Court agrees with the latter position.
The Court joins the CA in finding that the real intent of the setback
requirement was to make the parking space free for use by the
public, considering that it would no longer be for the exclusive use
of the respondents as it would also be available for use by the
general public. Section 9 of Article III of the 1987 Constitution, a
provision on eminent domain, provides that private property shall
not be taken for public use without just compensation.
The petitioners cannot justify the setback by arguing that the
ownership of the property will continue to remain with the
respondents. It is a settled rule that neither the acquisition of title
nor the total destruction of value is essential to taking. In fact, it is
usually in cases where the title remains with the private owner
that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a
compensable taking.32 The Court is of the view that the
implementation of the setback requirement would be tantamount
to a taking of a total of 3,762.36 square meters of the
respondents private property for public use without just
compensation, in contravention to the Constitution.
Anent the objectives of prevention of concealment of unlawful
acts and "un-neighborliness," it is obvious that providing for a
parking area has no logical connection to, and is not reasonably
necessary for, the accomplishment of these goals.
Regarding the beautification purpose of the setback requirement,
it has long been settled that the State may not, under the guise of
police power, permanently divest owners of the beneficial use of
their property solely to preserve or enhance the aesthetic
appearance of the community.33 The Court, thus, finds Section 5
to be unreasonable and oppressive as it will substantially divest
the respondents of the beneficial use of their property solely for
aesthetic purposes. Accordingly, Section 5 of Ordinance No. 192 is
invalid.
The petitioners, however, argue that the invalidity of Section 5
was properly cured by Zoning Ordinance No. 303,34 Series of
2000, which classified the respondents property to be within an
institutional zone, under which a five-meter setback has been
required.
The petitioners are mistaken. Ordinance No. 303, Series of 2000,
has no bearing to the case at hand.
The Court notes with displeasure that this argument was only
raised for the first time on appeal in this Court in the petitioners
Reply. Considering that Ordinance No. 303 was enacted on
December 20, 2000, the petitioners could very well have raised it
in their defense before the RTC in 2002. The settled rule in this
jurisdiction is that a party cannot change the legal theory of this
case under which the controversy was heard and decided in the
trial court. It should be the same theory under which the review
on appeal is conducted. Points of law, theories, issues, and
arguments not adequately brought to the attention of the lower
court will not be ordinarily considered by a reviewing court,
inasmuch as they cannot be raised for the first time on appeal.
This will be offensive to the basic rules of fair play, justice, and
due process.35
Furthermore, the two ordinances have completely different
purposes and subjects. Ordinance No. 192 aims to regulate the
construction of fences, while Ordinance No. 303 is a zoning
ordinance which classifies the city into specific land uses. In fact,
the five-meter setback required by Ordinance No. 303 does not
even appear to be for the purpose of providing a parking area.
By no stretch of the imagination, therefore, can Ordinance No.
303, "cure" Section 5 of Ordinance No. 192.
In any case, the clear subject of the petition for prohibition filed
by the respondents is Ordinance No. 192 and, as such, the precise
issue to be determined is whether the petitioners can be
prohibited from enforcing the said ordinance, and no other,
against the respondents.
80% See-Thru Fence Requirement
The petitioners argue that while Section 5 of Ordinance No. 192
may be invalid, Section 3.1 limiting the height of fences to one
meter and requiring fences in excess of one meter to be at least
80% see-thru, should remain valid and enforceable against the
respondents.
The Court cannot accommodate the petitioner.
For Section 3.1 to pass the rational relationship test, the
petitioners must show the reasonable relation between the
purpose of the police power measure and the means employed
for its accomplishment, for even under the guise of protecting the
public interest, personal rights and those pertaining to private
property will not be permitted to be arbitrarily invaded.36
The principal purpose of Section 3.1 is "to discourage, suppress or
prevent the concealment of prohibited or unlawful acts." The
ultimate goal of this objective is clearly the prevention of crime to
ensure public safety and security. The means employed by the
petitioners, however, is not reasonably necessary for the
accomplishment of this purpose and is unduly oppressive to
private rights. The petitioners have not adequately shown, and it
does not appear obvious to this Court, that an 80% see-thru fence
would provide better protection and a higher level of security, or
serve as a more satisfactory criminal deterrent, than a tall solid
concrete wall. It may even be argued that such exposed premises
could entice and tempt would-be criminals to the property, and
that a see-thru fence would be easier to bypass and breach. It also
appears that the respondents concrete wall has served as more
than sufficient protection over the last 40 years. `
As to the beautification purpose of the assailed ordinance, as
previously discussed, the State may not, under the guise of police
power, infringe on private rights solely for the sake of the
aesthetic appearance of the community. Similarly, the Court
cannot perceive how a see-thru fence will foster "neighborliness"
between members of a community.
Compelling the respondents to construct their fence in
accordance with the assailed ordinance is, thus, a clear
encroachment on their right to property, which necessarily
includes their right to decide how best to protect their property.
It also appears that requiring the exposure of their property via a
see-thru fence is violative of their right to privacy, considering that
the residence of the Benedictine nuns is also located within the
property. The right to privacy has long been considered a
fundamental right guaranteed by the Constitution that must be
protected from intrusion or constraint. The right to privacy is
essentially the right to be let alone,37 as governmental powers
should stop short of certain intrusions into the personal life of its
citizens.38 It is inherent in the concept of liberty, enshrined in the
Bill of Rights (Article III) in Sections 1, 2, 3(1), 6, 8, and 17, Article
III of the 1987 Constitution.39
The enforcement of Section 3.1 would, therefore, result in an
undue interference with the respondents rights to property and
privacy. Section 3.1 of Ordinance No. 192 is, thus, also invalid and
cannot be enforced against the respondents.
No Retroactivity
Ordinance No. 217 amended Section 7 of Ordinance No. 192 by
including the regulation of educational institutions which was
unintentionally omitted, and giving said educational institutions
five (5) years from the passage of Ordinance No. 192 (and not
Ordinance No. 217) to conform to its provisions.40 The petitioners
argued that the amendment could be retroactively applied
because the assailed ordinance is a curative statute which is
retroactive in nature.
Considering that Sections 3.1 and 5 of Ordinance No. 192 cannot
be enforced against the respondents, it is no longer necessary to
rule on the issue of retroactivity. The Court shall, nevertheless,
pass upon the issue for the sake of clarity.
"Curative statutes are enacted to cure defects in a prior law or to
validate legal proceedings which would otherwise be void for
want of conformity with certain legal requirements. They are
intended to supply defects, abridge superfluities and curb certain
evils. They are intended to enable persons to carry into effect that
which they have designed or intended, but has failed of expected
legal consequence by reason of some statutory disability or
irregularity in their own action. They make valid that which,
before the enactment of the statute was invalid. Their purpose is
to give validity to acts done that would have been invalid under
existing laws, as if existing laws have been complied with. Curative
statutes, therefore, by their very essence, are retroactive."41
The petitioners argue that Ordinance No. 192 is a curative statute
as it aims to correct or cure a defect in the National Building Code,
namely, its failure to provide for adequate guidelines for the
construction of fences. They ultimately seek to remedy an
insufficiency in the law. In aiming to cure this insufficiency, the
petitioners attempt to add lacking provisions to the National
Building Code. This is not what is contemplated by curative
statutes, which intend to correct irregularities or invalidity in the
law. The petitioners fail to point out any irregular or invalid
provision. As such, the assailed ordinance cannot qualify as
curative and retroactive in nature.
At any rate, there appears to be no insufficiency in the National
Building Code with respect to parking provisions in relation to the
issue of the respondents. Paragraph 1.16.1, Rule XIX of the Rules
and Regulations of the said code requires an educational
institution to provide one parking slot for every ten classrooms. As
found by the lower courts, the respondents provide a total of 76
parking slots for their 80 classrooms and, thus, had more than
sufficiently complied with the law.
Ordinance No. 192, as amended, is, therefore, not a curative
statute which may be applied retroactively.
Separability
Sections 3.1 and 5 of Ordinance No. 192, as amended, are, thus,
invalid and cannot be enforced against the respondents.
Nonetheless, "the general rule is that where part of a statute is
void as repugnant to the Constitution, while another part is valid,
the valid portion, if susceptible to being separated from the
invalid, may stand and be enforced."42 Thus, the other sections of
the assailed ordinance remain valid and enforceable.
Conclusion
Considering the invalidity of Sections 3.1 and 5, it is clear that the
petitioners were acting in excess of their jurisdiction in enforcing
Ordinance No. 192 against the respondents. The CA was correct in
affirming the decision of the RTC in issuing the writ of prohibition.
The petitioners must permanently desist from enforcing Sections
3.1 and 5 of the assailed ordinance on the respondents' property
in Marikina City.
WHEREFORE, the petition is DENIED. The October 2, 2002 Decision
of the Regional Trial Court in SCA Case No. 2000-381-MK is
AFFIRMED but MODIFIED to read as follows:
WHEREFORE, the petition is GRANTED. The writ of prohibition is
hereby issued commanding the respondents to permanently
desist from enforcing or implementing Sections 3.1 and 5 of
Ordinance No. 192, Series of 1994, as amended, on the
petitioners' property in question located in Marikina Heights,
Marikina, Metro Manila.
Aquino vs municipality of aklan
Before the Court is a Petition for Review on Certiorari challenging
the Decision1 and the Resolution of the Court of Appeals (CA) in
CA-G.R. SP No. 120042 dated August 13, 2013 and February 3,
2014, respectively. The assailed rulings denied Crisostomo
Aquinos Petition for Certiorari for not being the proper remedy to
question the issuance and implementation of Executive Order No.
10, Series of 2011 (EO 10), ordering the demolition of his hotel
establishment.
The Facts
Petitioner is the president and chief executive officer of Boracay
Island West Cove Management Philippines, Inc. (Boracay West
Cove). On January 7, 2010, the company applied for a zoning
compliance with the municipal government of Malay, Aklan.2
While the company was already operating a resort in the area, the
application sought the issuance of a building permit covering the
construction of a three-storey hotel over a parcel of land
measuring 998 sqm. located in Sitio Diniwid, Barangay Balagab,
Boracay Island, Malay, Aklan, which is covered by a Forest Land
Use Agreement for Tourism Purposes (FLAgT) issued by the
Department of Environment and Natural Resources (DENR) in
favor of Boracay West Cove.
Through a Decision on Zoning dated January 20, 2010, the
Municipal Zoning Administrator denied petitioners application on
the ground that the proposed construction site was within the no
build zone demarcated in Municipal Ordinance 2000-131
(Ordinance).3 As provided in the Ordinance:
SECTION 2. Definition of Terms. As used in this Ordinance, the
following words, terms and phrases shall mean as follows:
(b) No Build Zone the space twenty-five (25) meters from the
edge of the mean high water mark measured inland;
SECTION 3. No building or structure of any kind whether
temporary or permanent shall be allowed to be set up, erected or
constructed on the beaches around the Island of Boracay and in
its offshore waters. During the conduct of special activities or
special events, the Sangguniang Bayan may, through a Resolution,
authorize the Office of the Mayor to issue Special Permits for
construction of temporary structures on the beach for the
duration of the special activity as embodied in the Resolution.
In due time, petitioner appealed the denial action to the Office of
the Mayor on February 1, 2010.
On May 13, 2010, petitioner followed up his appeal through a
letter but no action was ever taken by the respondent mayor. On
April 5, 2011, however, a Notice of Assessment was sent to
petitioner asking for the settlement of Boracay West Coves
unpaid taxes and other liabilities under pain of a recommendation
for closure in view of its continuous commercial operation since
2009 sans the necessary zoning clearance, building permit, and
business and mayors permit. In reply, petitioner expressed
willingness to settle the companys obligations, but the municipal
treasurer refused to accept the tendered payment. Meanwhile,
petitioner continued with the construction, expansion, and
operation of the resort hotel.
Subsequently, on March 28, 2011, a Cease and Desist Order was
issued by the municipal government, enjoining the expansion of
the resort, and on June 7, 2011, the Office of the Mayor of Malay,
Aklan issued the assailed EO 10, ordering the closure and
demolition of Boracay West Coves hotel.
EO 10 was partially implemented on June 10, 2011. Thereafter,
two more instances followed wherein respondents demolished
the improvements introduced by Boracay West Cove, the most
recent of which was made in February 2014.
Alleging that the order was issued and executed with grave abuse
of discretion, petitioner filed a Petition for Certiorari with prayer
for injunctive relief with the CA. He argued that judicial
proceedings should first be conducted before the respondent
mayor could order the demolition of the companys
establishment; that Boracay West Cove was granted a FLAgT by
the DENR, which bestowed the company the right to construct
permanent improvements on the area in question; that since the
area is a forestland, it is the DENRand not the municipality of
Malay, or any other local government unit for that matterthat
has primary jurisdiction over the area, and that the Regional
Executive Director of DENR-Region 6 had officially issued an
opinion regarding the legal issues involved in the present case;
that the Ordinance admits of exceptions; and lastly, that it is the
mayor who should be blamed for not issuing the necessary
clearances in the companys favor.
In rebuttal, respondents contended that the FLAgT does not
excuse the company from complying with the Ordinance and
Presidential Decree No. 1096 (PD 1096), otherwise known as the
National Building Code of the Philippines. Respondents also
argued that the demolition needed no court order because the
municipal mayor has the express power under the Local
Government Code (LGC) to order the removal of illegally
constructed buildings.
Ruling of the Court of Appeals
In its assailed Decision dated August 13, 2013, the CA dismissed
the petition solely on procedural ground, i.e., the special writ of
certiorari can only be directed against a tribunal, board, or officer
exercising judicial or quasi-judicial functions and since the
issuance of EO 10 was done in the exercise of executive functions,
and not of judicial or quasi-judicial functions, certiorari will not lie.
Instead, the proper remedy for the petitioner, according to the
CA, is to file a petition for declaratory relief with the Regional Trial
Court.
Petitioner sought reconsideration but this was denied by the CA
on February 3, 2014 through the challenged Resolution. Hence,
the instant petition raising arguments on both procedure and
substance.
The Issues
Stripped to the essentials, the pivotal issues in the extant case are
as follows:
The propriety under the premises of the filing of a petition for
certiorari instead of a petition for declaratory relief;
Whether or not declaratory relief is still available to petitioner;
Whether or not the CA correctly ruled that the respondent mayor
was performing neither a judicial nor quasi-judicial function when
he ordered the closure and demolition of Boracay West Coves
hotel;
Whether or not respondent mayor committed grave abuse of
discretion when he issued EO 10;
Whether or not petitioners right to due process was violated
when the respondent mayor ordered the closure and demolition
of Boracay West Coves hotel without first conducting judicial
proceedings;

Whether or not the LGUs refusal to issue petitioner the necessary
building permit and clearances was justified;
Whether or not petitioners rights under the FLAgT prevail over
the municipal ordinance providing for a no-build zone; and
Whether or not the DENR has primary jurisdiction over the
controversy, not the LGU.
The Courts Ruling
We deny the petition.
Certiorari, not declaratory relief, is the proper remedy
a. Declaratory relief no longer viable
Resolving first the procedural aspect of the case, We find merit in
petitioners contention that the special writ of certiorari , and not
declaratory relief, is the proper remedy for assailing EO 10. As
provided under Sec. 1, Rule 63 of the Rules of Court:
SECTION 1. Who may file petition. Any person interested under
a deed, will, contract or other written instrument, whose rights
are affected by a statute, executive order or regulation, ordinance
or any other governmental regulation may, before breach or
violation thereof, bring an action in the appropriate Regional Trial
Court to determine any question of construction or validity
arising, and for a declaration of his rights or duties, thereunder. x
x x (emphasis added)
An action for declaratory relief presupposes that there has been
no actual breach of the instruments involved or of the rights
arising thereunder. Since the purpose of an action for declaratory
relief is to secure an authoritative statement of the rights and
obligations of the parties under a statute, deed, or contract for
their guidance in the enforcement thereof, or compliance
therewith, and not to settle issues arising from an alleged breach
thereof, it may be entertained before the breach or violation of
the statute, deed or contract to which it refers. A petition for
declaratory relief gives a practical remedy for ending
controversies that have not reached the state where another
relief is immediately available; and supplies the need for a form of
action that will set controversies at rest before they lead to a
repudiation of obligations, an invasion of rights, and a commission
of wrongs.4cralawlawlibrary
In the case at bar, the petition for declaratory relief became
unavailable by EO 10s enforcement and implementation. The
closure and demolition of the hotel rendered futile any possible
guidelines that may be issued by the trial court for carrying out
the directives in the challenged EO 10. Indubitably, the CA erred
when it ruled that declaratory relief is the proper remedy given
such a situation.
b. Petitioner correctly resorted to certiorari
On the propriety of filing a petition for certiorari , Sec. 1, Rule 65
of the Rules of Court provides:
Section 1. Petition for certiorari . When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require. x x
x
For certiorari to prosper, the petitioner must establish the
concurrence of the following requisites, namely:
The writ is directed against a tribunal, board, or officer exercising
judicial or quasi-judicial functions;
Such tribunal, board, or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and
There is no appeal or any plain speedy, and adequate remedy in
the ordinary course of law.5
Guilty of reiteration, the CA immediately dismissed the Petition
for Certiorari upon determining that the first element is wanting
that respondent mayor was allegedly not exercising judicial or
quasi-judicial functions when he issued EO 10.
We are not persuaded.
The CA fell into a trap when it ruled that a mayor, an officer from
the executive department, exercises an executive function
whenever he issues an Executive Order. This is tad too
presumptive for it is the nature of the act to be performed, rather
than of the office, board, or body which performs it, that
determines whether or not a particular act is a discharge of
judicial or quasi-judicial functions. The first requirement for
certiorari is satisfied if the officers act judicially in making their
decision, whatever may be their public
character.6cralawlawlibrary
It is not essential that the challenged proceedings should be
strictly and technically judicial, in the sense in which that word is
used when applied to courts of justice, but it is sufficient if they
are quasi-judicial.7 To contrast, a party is said to be exercising a
judicial function where he has the power to determine what the
law is and what legal rights of the parties are, and then
undertakes to determine these questions and adjudicate upon the
rights of the parties, whereas quasi-judicial function is a term
which applies to the actions, discretion, etc., of public
administrative officers or bodies x x x required to investigate facts
or ascertain the existence of facts, hold hearings, and draw
conclusions from them as a basis for their official action and to
exercise discretion of a judicial nature.8cralawlawlibrary
In the case at bench, the assailed EO 10 was issued upon the
respondent mayors finding that Boracay West Coves
construction, expansion, and operation of its hotel in Malay, Aklan
is illegal. Such a finding of illegality required the respondent
mayors exercise of quasi-judicial functions, against which the
special writ of certiorari may lie. Apropos hereto is Our ruling in
City Engineer of Baguio v. Baniqued:9cralawlawlibrary
There is no gainsaying that a city mayor is an executive official nor
is the matter of issuing demolition notices or orders not a
ministerial one. In determining whether or not a structure is illegal
or it should be demolished, property rights are involved thereby
needing notices and opportunity to be heard as provided for in
the constitutionally guaranteed right of due process. In pursuit of
these functions, the city mayor has to exercise quasi-judicial
powers.
With the foregoing discussion, the CA erred in ruling that the
respondent mayor was merely exercising his executive functions,
for clearly, the first requisite for the special writ has been
satisfied.
Aside from the first requisite, We likewise hold that the third
element, i.e., the unavailability of a plain, speedy, or adequate
remedy, is also present herein. While it may be argued that, under
the LGC, Executive Orders issued by mayors are subject to review
by provincial governors,10 this cannot be considered as an
adequate remedy given the exigencies of petitioners
predicament.
In a litany of cases, We have held that it is inadequacy, not the
mere absence of all other legal remedies and the danger of failure
of justice without the writ, that must usually determine the
propriety of certiorari . A remedy is plain, speedy and adequate if
it will promptly relieve the petitioner from the injurious effects of
the judgment, order, or resolution of the lower court or agency. It
is understood, then, that a litigant need not mark time by
resorting to the less speedy remedy of appeal in order to have an
order annulled and set aside for being patently void for failure of
the trial court to comply with the Rules of
Court.11cralawlawlibrary
Before applying this doctrine, it must first be borne in mind that
respondents in this case have already taken measures towards
implementing EO 10. In fact, substantial segments of the hotel
have already been demolished pursuant to the mayors directive.
It is then understandable why petitioner prayed for the issuance
of an injunctive writa provisional remedy that would otherwise
have been unavailable had he sought a reversal from the office of
the provincial governor of Aklan. Evidently, petitioner correctly
saw the urgent need for judicial intervention via certiorari .
In light of the foregoing, the CA should have proceeded to grab
the bull by its horns and determine the existence of the second
element of certiorari whether or not there was grave abuse of
discretion on the part of respondents.
Upon Our finding that a petition for certiorari under Rule 65 is the
appropriate remedy, We will proceed to resolve the core issues in
view of the urgency of the reliefs prayed for in the petition.
Respondents did not commit grave abuse of discretion
a. The hotels classification as 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.12cralawlawlibrary
In establishing a no build zone through local legislation, the LGU
effectively made a determination that constructions therein,
without first securing exemptions from the local council, qualify as
nuisances for they pose a threat to public safety. No build zones
are intended for the protection of the public because the stability
of the grounds foundation is adversely affected by the nearby
body of water. The ever present threat of high rising storm surges
also justifies the ban on permanent constructions near the
shoreline. Indeed, the areas exposure to potential geo-hazards
cannot be ignored and ample protection to the residents of
Malay, Aklan should be afforded.
Challenging the validity of the public respondents actuations,
petitioner posits that the hotel cannot summarily be abated
because it is not a nuisance per se, given the hundred million
peso-worth of capital infused in the venture. Citing Asilo, Jr. v.
People,13 petitioner also argues that respondents should have
first secured a court order before proceeding with the demolition.
Preliminarily, We agree with petitioners posture that the
property involved cannot be classified as a nuisance per se, but
not for the reason he so offers. Property valuation, after all, is not
the litmus test for such a determination. More controlling is the
propertys nature and conditions, which should be evaluated to
see if it qualifies as a nuisance as defined under the law.
As jurisprudence elucidates, nuisances are of two kinds: nuisance
per se and nuisance per accidens. The first is 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. The
second 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 does in law constitute a
nuisance.14cralawlawlibrary
In the case at bar, the hotel, in itself, cannot be considered as a
nuisance per se since this type of nuisance is generally defined as
an act, occupation, or structure, which is a nuisance at all times
and under any circumstances, regardless of location or
surrounding.15 Here, it is merely the hotels particular incident
its locationand not its inherent qualities that rendered it a
nuisance. Otherwise stated, had it not been constructed in the no
build zone, Boracay West Cove could have secured the necessary
permits without issue. As such, petitioner is correct that the hotel
is not a nuisance per se, but to Our mind, it is still a nuisance per
accidens.
b. Respondent mayor has the power to order the demolition of
illegal constructions
Generally, LGUs have no power to declare a particular thing as a
nuisance unless such a thing is a nuisance per se.16 So it was held
in AC Enterprises v. Frabelle Properties Corp:17cralawlawlibrary
We agree with petitioners 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)
Despite the hotels classification as a nuisance per accidens,
however, We still find in this case that the LGU may nevertheless
properly order the hotels demolition. This is because, in the
exercise of police power and the general welfare clause,18
property rights of individuals may be subjected to restraints and
burdens in order to fulfill 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.19cralawlawlibrary
One such piece of legislation is the LGC, which authorizes city and
municipal governments, acting through their local chief
executives, to issue demolition orders. Under existing laws, the
office of the mayor is given powers not only relative to its function
as the executive official of the town; it has also been endowed
with authority to hear issues involving property rights of
individuals and to come out with an effective order or resolution
thereon.20 Pertinent herein is Sec. 444 (b)(3)(vi) of the LGC, which
empowered the mayor to order the closure and removal of
illegally constructed establishments for failing to secure the
necessary permits, to wit:
Section 444. The Chief Executive: Powers, Duties, Functions and
Compensation.
xxxx
(b) For efficient, effective and economical governance the purpose
of which is the general welfare of the municipality and its
inhabitants pursuant to Section 16 of this Code, the municipal
mayor shall:
(3) Initiate and maximize the generation of resources and
revenues, and apply the same to the implementation of
development plans, program objectives and priorities as provided
for under Section 18 of this Code, particularly those resources and
revenues programmed for agro-industrial development and
country-wide growth and progress, and relative thereto, shall:
(vi) Require owners of illegally constructed houses, buildings or
other structures to obtain the necessary permit, subject to such
fines and penalties as may be imposed by law or ordinance, or to
make necessary changes in the construction of the same when
said construction violates any law or ordinance, or to order the
demolition or removal of said house, building or structure within
the period prescribed by law or ordinance. (emphasis supplied)
c. Requirements for the exercise of the power are present
i. Illegality of structures
In the case at bar, petitioner admittedly failed to secure the
necessary permits, clearances, and exemptions before the
construction, expansion, and operation of Boracay Wet Coves
hotel in Malay, Aklan. To recall, petitioner declared that the
application for zoning compliance was still pending with the office
of the mayor even though construction and operation were
already ongoing at the same time. As such, it could no longer be
denied that petitioner openly violated Municipal Ordinance 2000-
131, which provides:
SECTION 9. Permits and Clearances.
(a)
No building or structure shall be allowed to start construction
unless a Building Permit therefore has been duly issued by the
Office of the Municipal Engineer. Once issued, the building owner
or any person in charge of the construction shall display on the lot
or on the building undergoing construction a placard containing
the Building Permit Number and the date of its issue. The office of
the Municipal Engineer shall not issue any building permit unless:
The proposed construction has been duly issued a Zoning
Clearance by the Office of the Municipal Zoning Officer;
The proposed construction has been duly endorsed by the
Sangguniang Bayan through a Letter of Endorsement.
(b)
Only buildings/structures which has complied with all the
requirements for its construction as verified to by the Building
Inspector and the Sangguniang Bayan shall be issued a Certificate
of Occupancy by the Office of the Municipal Engineer.
(c)
No Business or Mayors Permit shall be issued to businesses being
undertaken on buildings or structures which were not issued a
certificate of Occupancy beginning January 2001 and thereafter.
SECTION 10. Penalties.
(e) Any building, structure, or contraption erected in any public
place within the Municipality of Malay such as but not limited to
streets, thoroughfares, sidewalks, plazas, beaches or in any other
public place are hereby declared as nuisance and illegal structure.
Such building structure or contraption shall be demolished by the
owner thereof or any of his authorized representative within ten
(10) days from receipt of the notice to demolish. Failure or refusal
on the part of the owner or any of his authorized representative
to demolish the illegal structure within the period herein above
specified shall automatically authorize the government of the
Municipality of Malay to demolish the same, gather and keep the
construction materials of the demolished structure. (emphasis
supplied)
Petitioner cannot justify his position by passing the blame onto
the respondent mayor and the latters failure to act on his appeal
for this does not, in any way, imply that petitioner can proceed
with his infrastructure projects. On the contrary, this only means
that the decision of the zoning administrator denying the
application still stands and that petitioner acquired no right to
construct on the no build zone. The illegality of the construction
cannot be cured by merely tendering payment for the necessary
fees and permits since the LGUs refusal rests on valid grounds.
Instead of taking the law into his own hands, petitioner could have
filed, as an alternative, a petition for mandamus to compel the
respondent mayor to exercise discretion and resolve the
controversy pending before his office. There is indeed an
exception to the rule that matters involving judgment and
discretion are beyond the reach of a writ of mandamus, for such
writ may be issued to compel action in those matters, when
refused. Whether or not the decision would be for or against
petitioner would be for the respondent mayor to decide, for while
mandamus may be invoked to compel the exercise of discretion, it
cannot compel such discretion to be exercised in a particular
way.21 What would have been important was for the respondent
mayor to immediately resolve the case for petitioner to be able to
go through the motions that the zoning clearance application
process entailed.
Alas, petitioner opted to defy the zoning administrators ruling. He
consciously chose to violate not only the Ordinance but also Sec.
301 of PD 1096, laying down the requirement of building permits,
which provides:
Section 301. Building Permits. No person, firm or corporation,
including any agency or instrumentality of the government shall
erect, construct, alter, repair, move, convert or demolish any
building or structure or cause the same to be done without first
obtaining a building permit therefor from the Building Official
assigned in the place where the subject building is located or the
building work is to be done.
This twin violation of law and ordinance warranted the LGUs
invocation of Sec. 444 (b)(3)(vi) of the LGC, which power is
separate and distinct from the power to summarily abate
nuisances per se. Under the law, insofar as illegal constructions
are concerned, the mayor can, after satisfying the requirement of
due notice and hearing, order their closure and demolition.
ii. Observance of procedural due process rights
In the case at bench, the due process requirement is deemed to
have been sufficiently complied with. First, basic is the rule that
public officers enjoy the presumption of regularity in the
performance of their duties.22 The burden is on the petitioner
herein to prove that Boracay West Cove was deprived of the
opportunity to be heard before EO 10 was issued. Regrettably,
copies of the Cease and Desist Order issued by the LGU and of the
assailed EO 10 itself were never attached to the petition before
this Court, which documents could have readily shed light on
whether or not petitioner has been accorded the 10-day grace
period provided in Section 10 of the Ordinance. In view of this
fact, the presumption of regularity must be sustained. Second, as
quoted by petitioner in his petition before the CA, the assailed EO
10 states that petitioner received notices from the municipality
government on March 7 and 28, 2011, requiring Boracay West
Cove to comply with the zoning ordinance and yet it failed to do
so.23 If such was the case, the grace period can be deemed
observed and the establishment was already ripe for closure and
demolition by the time EO 10 was issued in June. Third, the
observance of the 10-day allowance for the owner to demolish
the hotel was never questioned by petitioner so there is no need
to discuss the same. Verily, the only grounds invoked by petitioner
in crying due process violation are (1) the absence of a court order
prior to demolition and (2) the municipal governments exercise of
jurisdiction over the controversy instead of the DENR. Therefore,
it can no longer be belatedly argued that the 10-day grace period
was not observed because to entertain the same would result in
the violation of the respondents own due process rights.
Given the presence of the requirements under Sec. 444 (b)(3)(vi)
of the LGC, whether the building constituted a nuisance per se or
a nuisance per accidens becomes immaterial. The hotel was
demolished not exactly because it is a nuisance but because it
failed to comply with the legal requirements prior to construction.
It just so happened that, in the case at bar, the hotels incident
that qualified it as a nuisance per accidensits being constructed
within the no build zonefurther resulted in the non-issuance of
the necessary permits and clearances, which is a ground for
demolition under the LGC. Under the premises, a court order that
is required under normal circumstances is hereby dispensed with.
d. The FLAgT cannot prevail over the municipal ordinance and
PD 1096
Petitioner next directs our attention to the following FLAgT
provision
VII. The SECOND PARTY may construct permanent and/or
temporary improvements or infrastructure in the FLAgT Area
necessary and appropriate for its development for tourism
purposes pursuant to the approved SMP. Permanent
Improvements refer to access roads, and buildings or structures
which adhere to the ground in a fixed and permanent manner. On
the other hand, Temporary Improvements include those which
are detachable from the foundation or the ground introduced by
the SECOND PARTY in the FLAgT Area and which the SECOND
PARTY may remove or dismantle upon expiration or cancellation
of this AGREEMENT x x x.24chanrobleslaw
Taken in conjunction with the exceptions laid down in Sections 6
and 8 of the Ordinance, petitioner argues that Boracay West Cove
is exempted from securing permits from the LGU. Said exceptions
read:
SECTION 6. No building or structure shall be allowed to be
constructed on a slope Twenty Five Percent (25%) or higher unless
provided with soil erosion protective structures and authorized by
the Department of Environment and Natural Resources.
SECTION 8. No building or structure shall be allowed to be
constructed on a swamp or other water-clogged areas unless
authorized by the Department of Environment and Natural
Resources.
According to petitioner, the fact that it was issued a FLAgT
constitutes sufficient authorization from the DENR to proceed
with the construction of the three-storey hotel.
The argument does not persuade.
The rights granted to petitioner under the FLAgT are not
unbridled. Forestlands, although under the management of the
DENR, are not exempt from the territorial application of municipal
laws, for local government units legitimately exercise their powers
of government over their defined territorial jurisdiction.
Furthermore, the conditions set forth in the FLAgT and the
limitations circumscribed in the ordinance are not mutually
exclusive and are, in fact, cumulative. As sourced from Sec. 447
(a)(5)(i) of the LGC:
Section 447. Powers, Duties, Functions and Compensation.
(a) The sangguniang bayan, as the legislative body of the
municipality, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and
its inhabitants pursuant to Section 16 of this Code and in the
proper exercise of the corporate powers of the municipality as
provided for under Section 22 of this Code, and shall:
(5) Approve ordinances which shall ensure the efficient and
effective delivery of the basic services and facilities as provided for
under Section 17 of this Code, and in addition to said services and
facilities, shall:
(i) Provide for the establishment, maintenance, protection, and
conservation of communal forests and watersheds, tree parks,
greenbelts, mangroves, and other similar forest development
projects x x x. (emphasis added)
Thus, aside from complying with the provisions in the FLAgT
granted by the DENR, it was incumbent on petitioner to likewise
comply with the no build zone restriction under Municipal
Ordinance 2000-131, which was already in force even before the
FLAgT was entered into. On this point, it is well to stress that
Sections 6 and 8 of the Ordinance do not exempt petitioner from
complying with the restrictions since these provisions adverted to
grant exemptions from the ban on constructions on slopes and
swamps, not on the no build zone.
Additionally, the FLAgT does not excuse petitioner from complying
with PD 1096. As correctly pointed out by respondents, the
agreement cannot and will not amend or change the law because
a legislative act cannot be altered by mere contractual agreement.
Hence, petitioner has no valid reason for its failure to secure a
building permit pursuant to Sec. 301 of the National Building
Code.
e. The DENR does not have primary jurisdiction over the
controversy
Lastly, in ascribing grave abuse of discretion on the part of the
respondent mayor, petitioner argued that the hotel site is a
forestland under the primary jurisdiction of the DENR. As such,
the merits of the case should have been passed upon by the
agency and not by the LGU. In the alternative, petitioner explains
that even if jurisdiction over the matter has been devolved in
favor of the LGU, the DENR still has the power of review and
supervision over the formers rulings. As cited by the petitioner,
the LGC reads:
Section 17. Basic Services and Facilities.
(b) Such basic services and facilities include, but are not limited to,
the following
(2) For a Municipality:
(ii) Pursuant to national policies and subject to supervision,
control and review of the DENR, implementation of community-
based forestry projects which include integrated social forestry
programs and similar projects; management and control of
communal forests with an area not exceeding fifty (50) square
kilometers; establishment of tree parks, greenbelts, and similar
forest development projects. (emphasis added)
Petitioner has made much of the fact that in line with this
provision, the DENR Region 6 had issued an opinion favourable to
petitioner.25 To petitioner, the adverted opinion effectively
reversed the findings of the respondent mayor that the structure
introduced was illegally constructed.
We disagree.
In alleging that the case concerns the development and the
proper use of the countrys environment and natural resources,
petitioner is skirting the principal issue, which is Boracay West
Coves non-compliance with the permit, clearance, and zoning
requirements for building constructions under national and
municipal laws. He downplays Boracay West Coves omission in a
bid to justify ousting the LGU of jurisdiction over the case and
transferring the same to the DENR. He attempts to blow the issue
out of proportion when it all boils down to whether or not the
construction of the three-storey hotel was supported by the
necessary documentary requirements.
Based on law and jurisprudence, the office of the mayor has
quasi-judicial powers to order the closing and demolition of
establishments. This power granted by the LGC, as earlier
explained, We believe, is not the same power devolved in favor of
the LGU under Sec. 17 (b)(2)(ii), as above-quoted, which is subject
to review by the DENR. The fact that the building to be
demolished is located within a forestland under the
administration of the DENR is of no moment, for what is involved
herein, strictly speaking, is not an issue on environmental
protection, conservation of natural resources, and the
maintenance of ecological balance, but the legality or illegality of
the structure. Rather than treating this as an environmental issue
then, focus should not be diverted from the root cause of this
debaclecompliance.
Ultimately, the purported power of review by a regional office of
the DENR over respondents actions exercised through an
instrumentality of an ex-parte opinion, in this case, finds no
sufficient basis. At best, the legal opinion rendered, though
perhaps informative, is not conclusive on the courts and should be
taken with a grain of salt.
WHEREFORE, in view of the foregoing, the petition is hereby
DENIED for lack of merit. The Decision and the Resolution of the
Court of Appeals in CA-G.R. SP No. 120042 dated August 13, 2013
and February 3, 2014, respectively, are hereby AFFIRMED.
Ferrer vs bautista
Before this Court is a petition for certiorari under Rule 65 of the
Rules of Court with prayer for the issuance of a temporary
restraining order (TRO) seeking to declare unconstitutional and
illegal Ordinance Nos. SP-2095, S-2011 and SP-2235, S-2013 on
the Socialized Housing Tax and Garbage Fee, respectively, which
are being imposed by the respondents.
The Case
On October 17, 2011,1 respondent Quezon City Council enacted
Ordinance No. SP-2095, S-2011,2 or the Socialized Housing Tax of
Quezon City, Section 3 of which provides:
SECTION 3. IMPOSITION. A special assessment equivalent to one-
half percent (0.5%) on the assessed value of land in excess of One
Hundred Thousand Pesos (Php100,000.00) shall be collected by
the City Treasurer which shall accrue to the Socialized Housing
Programs of the Quezon City Government. The special assessment
shall accrue to the General Fund under a special account to be
established for the purpose.
Effective for five (5) years, the Socialized Housing Tax (SHT) shall
be utilized by the Quezon City Government for the following
projects: (a) land purchase/land banking; (b) improvement of
current/existing socialized housing facilities; (c) land development;
(d) construction of core houses, sanitary cores, medium-rise
buildings and other similar structures; and (e) financing of public-
private partnership agreement of the Quezon City Government
and National Housing Authority (NHA) with the private sector.3
Under certain conditions, a tax credit shall be enjoyed by
taxpayers regularly paying the special assessment:
SECTION 7. TAX CREDIT. Taxpayers dutifully paying the special
assessment tax as imposed by this ordinance shall enjoy a tax
credit. The tax credit may be availed of only after five (5) years of
continue[d] payment. Further, the taxpayer availing this tax credit
must be a taxpayer in good standing as certified by the City
Treasurer and City Assessor.
The tax credit to be granted shall be equivalent to the total
amount of the special assessment paid by the property owner,
which shall be given as follows:
Furthermore, only the registered owners may avail of the tax
credit and may not be continued by the subsequent property
owners even if they are buyers in good faith, heirs or possessor of
a right in whatever legal capacity over the subject property.4
On the other hand, Ordinance No. SP-2235, S-20135 was enacted
on December 16, 2013 and took effect ten days after when it was
approved by respondent City Mayor.6 The proceeds collected
from the garbage fees on residential properties shall be deposited
solely and exclusively in an earmarked special account under the
general fund to be utilized for garbage collections.7 Section 1 of
the Ordinance set forth the schedule and manner for the
collection of garbage fees:
SECTION 1. The City Government of Quezon City in conformity
with and in relation to Republic Act No. 7160, otherwise known as
the Local Government Code of 1991 HEREBY IMPOSES THE
FOLLOWING SCHEDULE AND MANNER FOR THE ANNUAL
COLLECTION OF GARBAGE FEES, AS FOLLOWS:
a)
High-rise Condominium The Homeowners Association of high-
rise condominiums shall pay the annual garbage fee on the total
size of the entire condominium and socialized Housing Unit and an
additional garbage fee shall be collected based on area occupied
for every unit already sold or being amortized.
b)
High-rise apartment units Owners of high-rise apartment units
shall pay the annual garbage fee on the total lot size of the entire
apartment and an additional garbage fee based on the schedule
prescribed herein for every unit occupied.
The collection of the garbage fee shall accrue on the first day of
January and shall be paid simultaneously with the payment of the
real property tax, but not later than the first quarter installment.8
In case a household owner refuses to pay, a penalty of 25% of the
garbage fee due, plus an interest of 2% per month or a fraction
thereof, shall be charged.9ChanRoblesVirtualawlibrary
Petitioner alleges that he is a registered co-owner of a 371-
square-meter residential property in Quezon City which is covered
by Transfer Certificate of Title (TCT) No. 216288, and that, on
January 7, 2014, he paid his realty tax which already included the
garbage fee in the sum of
Php100.00.10ChanRoblesVirtualawlibrary
The instant petition was filed on January 17, 2014. We issued a
TRO on February 5, 2014, which enjoined the enforcement of
Ordinance Nos. SP-2095 and SP-2235 and required respondents to
comment on the petition without necessarily giving due course
thereto.11ChanRoblesVirtualawlibrary
Respondents filed their Comment12 with urgent motion to
dissolve the TRO on February 17, 2014. Thereafter, petitioner filed
a Reply and a Memorandum on March 3, 2014 and September 8,
2014, respectively.
Procedural Matters
A. Propriety of a Petition for Certiorari
Respondents are of the view that this petition for certiorari is
improper since they are not tribunals, boards or officers exercising
judicial or quasi-judicial functions. Petitioner, however, counters
that in enacting Ordinance Nos. SP-2095 and SP-2235, the Quezon
City Council exercised quasi-judicial function because the
ordinances ruled against the property owners who must pay the
SHT and the garbage fee, exacting from them funds for basic
essential public services that they should not be held liable. Even
if a Rule 65 petition is improper, petitioner still asserts that this
Court, in a number of cases like in Rosario v. Court of Appeals,13
has taken cognizance of an improper remedy in the interest of
justice.
We agree that respondents neither acted in any judicial or quasi-
judicial capacity nor arrogated unto themselves any judicial or
quasi-judicial prerogatives.
A respondent is said to be exercising judicial function where he
has the power to determine what the law is and what the legal
rights of the parties are, and then undertakes to determine these
questions and adjudicate upon the rights of the parties.
Quasi-judicial function, on the other hand, is a term which
applies to the actions, discretion, etc., of public administrative
officers or bodies required to investigate facts or ascertain the
existence of facts, hold hearings, and draw conclusions from them
as a basis for their official action and to exercise discretion of a
judicial nature.
Before a tribunal, board, or officer may exercise judicial or quasi-
judicial acts, it is necessary that there be a law that gives rise to
some specific rights of persons or property under which adverse
claims to such rights are made, and the controversy ensuing
therefrom is brought before a tribunal, board, or officer clothed
with power and authority to determine the law and adjudicate the
respective rights of the contending parties.14
For a writ of certiorari to issue, the following requisites must
concur: (1) it must be directed against a tribunal, board, or officer
exercising judicial or quasi-judicial functions; (2) the tribunal,
board, or officer must have acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction; and (3) there is no appeal or any plain,
speedy, and adequate remedy in the ordinary course of law. The
enactment by the Quezon City Council of the assailed ordinances
was done in the exercise of its legislative, not judicial or quasi-
judicial, function. Under Republic Act (R.A.) No. 7160, or the Local
Government Code of 1991 (LGC), local legislative power shall be
exercised by the Sangguniang Panlungsod for the city.15 Said law
likewise is specific in providing that the power to impose a tax,
fee, or charge, or to generate revenue shall be exercised by the
sanggunian of the local government unit concerned through an
appropriate ordinance.16ChanRoblesVirtualawlibrary
Also, although the instant petition is styled as a petition for
certiorari, it essentially seeks to declare the unconstitutionality
and illegality of the questioned ordinances. It, thus, partakes of
the nature of a petition for declaratory relief over which this Court
has only appellate, not original,
jurisdiction.17ChanRoblesVirtualawlibrary
Despite these, a petition for declaratory relief may be treated as
one for prohibition or mandamus, over which We exercise original
jurisdiction, in cases with far-reaching implications or one which
raises transcendental issues or questions that need to be resolved
for the public good.18 The judicial policy is that this Court will
entertain direct resort to it when the redress sought cannot be
obtained in the proper courts or when exceptional and compelling
circumstances warrant availment of a remedy within and calling
for the exercise of Our primary
jurisdiction.19ChanRoblesVirtualawlibrary
Section 2, Rule 65 of the Rules of Court lay down under what
circumstances a petition for prohibition may be filed:
SEC. 2. Petition for prohibition. - When the proceedings of any
tribunal, corporation, board, officer or person, whether exercising
judicial, quasi-judicial or ministerial functions, are without or in
excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal
or any other plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified
petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the respondent
to desist from further proceeding in the action or matter specified
therein, or otherwise granting such incidental reliefs as law and
justice may require.
In a petition for prohibition against any tribunal, corporation,
board, or person whether exercising judicial, quasi-judicial, or
ministerial functions who has acted without or in excess of
jurisdiction or with grave abuse of discretion, the petitioner prays
that judgment be rendered, commanding the respondents to
desist from further proceeding in the action or matter specified in
the petition. In this case, petitioner's primary intention is to
prevent respondents from implementing Ordinance Nos. SP-2095
and SP-2235. Obviously, the writ being sought is in the nature of a
prohibition, commanding desistance.
We consider that respondents City Mayor, City Treasurer, and City
Assessor are performing ministerial functions. A ministerial
function is one that an officer or tribunal performs in the context
of a given set of facts, in a prescribed manner and without regard
for the exercise of his or its own judgment, upon the propriety or
impropriety of the act done.20 Respondent Mayor, as chief
executive of the city government, exercises such powers and
performs such duties and functions as provided for by the LGC and
other laws.21 Particularly, he has the duty to ensure that all taxes
and other revenues of the city are collected, and that city funds
are applied to the payment of expenses and settlement of
obligations of the city, in accordance with law or ordinance.22 On
the other hand, under the LGC, all local taxes, fees, and charges
shall be collected by the provincial, city, municipal, or barangay
treasurer, or their duly-authorized deputies, while the assessor
shall take charge, among others, of ensuring that all laws and
policies governing the appraisal and assessment of real properties
for taxation purposes are properly executed.23 Anent the SHT, the
Department of Finance (DOF) Local Finance Circular No. 1-97,
dated April 16, 1997, is more specific:

6.3 The Assessors office of the Id.ntified LGU shall:
immediately undertake an inventory of lands within its jurisdiction
which shall be subject to the levy of the Social Housing Tax (SHT)
by the local sanggunian concerned;
inform the affected registered owners of the effectivity of the
SHT; a list of the lands and registered owners shall also be posted
in 3 conspicuous places in the city/municipality;
furnish the Treasurers office and the local sanggunian concerned
of the list of lands affected;
6.4 The Treasurers office shall:
collect the Social Housing Tax on top of the Real Property Tax, SEF
Tax and other special assessments;
report to the DOF, thru the Bureau of Local Government Finance,
and the Mayors office the monthly collections on Social Housing
Tax (SHT). An annual report should likewise be submitted to the
HUDCC on the total revenues raised during the year pursuant to
Sec. 43, R.A. 7279 and the manner in which the same was
disbursed.
Petitioner has adduced special and important reasons as to why
direct recourse to Us should be allowed. Aside from presenting a
novel question of law, this case calls for immediate resolution
since the challenged ordinances adversely affect the property
interests of all paying constituents of Quezon City. As well, this
petition serves as a test case for the guidance of other local
government units (LGUs). Indeed, the petition at bar is of
transcendental importance warranting a relaxation of the doctrine
of hierarchy of courts. In Social Justice Society (SJS) Officers, et al.
v. Lim,24 the Court cited the case of Senator Jaworski v. Phil.
Amusement & Gaming Corp.,25 where We ratiocinated:
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental
importance of the issues involved in this case warrants that we set
aside the technical defects and take primary jurisdiction over the
petition at bar. x x x This is in accordance with the well-
entrenched principle that rules of procedure are not inflexible
tools designed to hinder or delay, but to facilitate and promote
the administration of justice. Their strict and rigid application,
which would result in technicalities that tend to frustrate, rather
than promote substantial justice, must always be eschewed.26
B. Locus Standi of Petitioner
Respondents challenge petitioners legal standing to file this case
on the ground that, in relation to Section 3 of Ordinance No. SP-
2095, petitioner failed to allege his ownership of a property that
has an assessed value of more than Php100,000.00 and, with
respect to Ordinance No. SP-2335, by what standing or personality
he filed the case to nullify the same. According to respondents,
the petition is not a class suit, and that, for not having specifically
alleged that petitioner filed the case as a taxpayer, it could only be
surmised whether he is a party-in-interest who stands to be
directly benefited or injured by the judgment in this case.
It is a general rule that every action must be prosecuted or
defended in the name of the real party-in-interest, who stands to
be benefited or injured by the judgment in the suit, or the party
entitled to the avails of the suit.
Jurisprudence defines interest as "material interest, an interest in
issue and to be affected by the decree, as distinguished from
mere interest in the question involved, or a mere incidental
interest. By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or a future, contingent,
subordinate, or consequential interest." "To qualify a person to be
a real party-in-interest in whose name an action must be
prosecuted, he must appear to be the present real owner of the
right sought to be enforced."27
Legal standing or locus standi calls for more than just a
generalized grievance.28 The concept has been defined as a
personal and substantial interest in the case such that the party
has sustained or will sustain direct injury as a result of the
governmental act that is being challenged.29 The gist of the
question of standing is whether a party alleges such personal
stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional
questions.30ChanRoblesVirtualawlibrary
A party challenging the constitutionality of a law, act, or statute
must show not only that the law is invalid, but also that he has
sustained or is in immediate, or imminent danger of sustaining
some direct injury as a result of its enforcement, and not merely
that he suffers thereby in some indefinite way. It must be shown
that he has been, or is about to be, denied some right or privilege
to which he is lawfully entitled, or that he is about to be subjected
to some burdens or penalties by reason of the statute complained
of.31ChanRoblesVirtualawlibrary
Tested by the foregoing, petitioner in this case clearly has legal
standing to file the petition. He is a real party-in-interest to assail
the constitutionality and legality of Ordinance Nos. SP-2095 and
SP-2235 because respondents did not dispute that he is a
registered co-owner of a residential property in Quezon City and
that he paid property tax which already included the SHT and the
garbage fee. He has substantial right to seek a refund of the
payments he made and to stop future imposition. While he is a
lone petitioner, his cause of action to declare the validity of the
subject ordinances is substantial and of paramount interest to
similarly situated property owners in Quezon City.
C. Litis Pendentia
Respondents move for the dismissal of this petition on the ground
of litis pendentia. They claim that, as early as February 22, 2012, a
case entitled Alliance of Quezon City Homeowners, Inc., et al., v.
Hon. Herbert Bautista, et al., docketed as Civil Case No. Q-12-7-
820, has been pending in the Quezon City Regional Trial Court,
Branch 104, which assails the legality of Ordinance No. SP-2095.
Relying on City of Makati, et al. v. Municipality (now City) of
Taguig, et al.,32 respondents assert that there is substantial
identity of parties between the two cases because petitioner
herein and plaintiffs in the civil case filed their respective cases as
taxpayers of Quezon City.
For petitioner, however, respondents contention is untenable
since he is not a party in Alliance and does not even have the
remotest identity or association with the plaintiffs in said civil
case. Moreover, respondents arguments would deprive this Court
of its jurisdiction to determine the constitutionality of laws under
Section 5, Article VIII of the 1987
Constitution.33ChanRoblesVirtualawlibrary
Litis pendentia is a Latin term which literally means a pending
suit and is variously referred to in some decisions as lis pendens
and auter action pendant.34 While it is normally connected with
the control which the court has on a property involved in a suit
during the continuance proceedings, it is more interposed as a
ground for the dismissal of a civil action pending in court.35 In
Film Development Council of the Philippines v. SM Prime Holdings,
Inc.,36 We elucidated:
Litis pendentia, as a ground for the dismissal of a civil action,
refers to a situation where two actions are pending between the
same parties for the same cause of action, so that one of them
becomes unnecessary and vexatious. It is based on the policy
against multiplicity of suit and authorizes a court to dismiss a case
motu proprio.
xxxx
The requisites in order that an action may be dismissed on the
ground of litis pendentia are: (a) the identity of parties, or at least
such as representing the same interest in both actions; (b) the
identity of rights asserted and relief prayed for, the relief being
founded on the same facts, and (c) the identity of the two cases
such that judgment in one, regardless of which party is successful,
would amount to res judicata in the other.
The underlying principle of litis pendentia is the theory that a
party is not allowed to vex another more than once regarding the
same subject matter and for the same cause of action. This theory
is founded on the public policy that the same subject matter
should not be the subject of controversy in courts more than
once, in order that possible conflicting judgments may be avoided
for the sake of the stability of the rights and status of persons, and
also to avoid the costs and expenses incident to numerous suits.
Among the several tests resorted to in ascertaining whether two
suits relate to a single or common cause of action are: (1) whether
the same evidence would support and sustain both the first and
second causes of action; and (2) whether the defenses in one case
may be used to substantiate the complaint in the other.
The determination of whether there is an identity of causes of
action for purposes of litis pendentia is inextricably linked with
that of res judicata, each constituting an element of the other. In
either case, both relate to the sound practice of including, in a
single litigation, the disposition of all issues relating to a cause of
action that is before a court.37
There is substantial identity of the parties when there is a
community of interest between a party in the first case and a
party in the second case albeit the latter was not impleaded in the
first case.38 Moreover, the fact that the positions of the parties
are reversed, i.e., the plaintiffs in the first case are the defendants
in the second case or vice-versa, does not negate the identity of
parties for purposes of determining whether the case is
dismissible on the ground of litis
pendentia.39ChanRoblesVirtualawlibrary
In this case, it is notable that respondents failed to attach any
pleading connected with the alleged civil case pending before the
Quezon City trial court. Granting that there is substantial identity
of parties between said case and this petition, dismissal on the
ground of litis pendentia still cannot be had in view of the absence
of the second and third requisites. There is no way for Us to
determine whether both cases are based on the same set of facts
that require the presentation of the same evidence. Even if
founded on the same set of facts, the rights asserted and reliefs
prayed for could be different. Moreover, there is no basis to rule
that the two cases are intimately related and/or intertwined with
one another such that the judgment that may be rendered in one,
regardless of which party would be successful, would amount to
res judicata in the other.
D. Failure to Exhaust Administrative Remedies
Respondents contend that petitioner failed to exhaust
administrative remedies for his non-compliance with Section 187
of the LGC, which mandates:
Section 187. Procedure for Approval and Effectivity of Tax
Ordinances and Revenue Measures; Mandatory Public Hearings.
The procedure for approval of local tax ordinances and revenue
measures shall be in accordance with the provisions of this Code:
Provided, That public hearings shall be conducted for the purpose
prior to the enactment thereof: Provided, further, That any
question on the constitutionality or legality of tax ordinances or
revenue measures may be raised on appeal within thirty (30) days
from the effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date of receipt of
the appeal: Provided, however, That such appeal shall not have
the effect of suspending the effectivity of the ordinance and the
accrual and payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after receipt of the
decision or the lapse of the sixty-day period without the Secretary
of Justice acting upon the appeal, the aggrieved party may file
appropriate proceedings with a court of competent jurisdiction.
The provision, the constitutionality of which was sustained in
Drilon v. Lim,40 has been construed as mandatory41 considering
that
A municipal tax ordinance empowers a local government unit to
impose taxes. The power to tax is the most effective instrument to
raise needed revenues to finance and support the myriad
activities of local government units for the delivery of basic
services essential to the promotion of the general welfare and
enhancement of peace, progress, and prosperity of the people.
Consequently, any delay in implementing tax measures would be
to the detriment of the public. It is for this reason that protests
over tax ordinances are required to be done within certain time
frames. x x x.42
The obligatory nature of Section 187 was underscored in Hagonoy
Market Vendor Asso. v. Municipality of
Hagonoy:43cralawlawlibrary
x x x [T]he timeframe fixed by law for parties to avail of their legal
remedies before competent courts is not a mere technicality
that can be easily brushed aside. The periods stated in Section 187
of the Local Government Code are mandatory. x x x Being its
lifeblood, collection of revenues by the government is of
paramount importance. The funds for the operation of its
agencies and provision of basic services to its inhabitants are
largely derived from its revenues and collections. Thus, it is
essential that the validity of revenue measures is not left
uncertain for a considerable length of time. Hence, the law
provided a time limit for an aggrieved party to assail the legality of
revenue measures and tax ordinances.44
Despite these cases, the Court, in Ongsuco, et al. v. Hon.
Malones,45 held that there was no need for petitioners therein to
exhaust administrative remedies before resorting to the courts,
considering that there was only a pure question of law, the parties
did not dispute any factual matter on which they had to present
evidence. Likewise, in Cagayan Electric Power and Light Co., Inc. v.
City of Cagayan de Oro,46 We relaxed the application of the rules
in view of the more substantive matters. For the same reasons,
this petition is an exception to the general rule.
Substantive Issues
Petitioner asserts that the protection of real properties from
informal settlers and the collection of garbage are basic and
essential duties and functions of the Quezon City Government. By
imposing the SHT and the garbage fee, the latter has shown a
penchant and pattern to collect taxes to pay for public services
that could be covered by its revenues from taxes imposed on
property, idle land, business, transfer, amusement, etc., as well as
the Internal Revenue Allotment (IRA) from the National
Government. For petitioner, it is noteworthy that respondents did
not raise the issue that the Quezon City Government is in dire
financial state and desperately needs money to fund housing for
informal settlers and to pay for garbage collection. In fact, it has
not denied that its revenue collection in 2012 is in the sum of
P13.69 billion.
Moreover, the imposition of the SHT and the garbage fee cannot
be justified by the Quezon City Government as an exercise of its
power to create sources of income under Section 5, Article X of
the 1987 Constitution.47 According to petitioner, the
constitutional provision is not a carte blanche for the LGU to tax
everything under its territorial and political jurisdiction as the
provision itself admits of guidelines and limitations.
Petitioner further claims that the annual property tax is an ad
valorem tax, a percentage of the assessed value of the property,
which is subject to revision every three (3) years in order to reflect
an increase in the market value of the property. The SHT and the
garbage fee are actually increases in the property tax which are
not based on the assessed value of the property or its
reassessment every three years; hence, in violation of Sections
232 and 233 of the LGC.48ChanRoblesVirtualawlibrary
For their part, respondents relied on the presumption in favor of
the constitutionality of Ordinance Nos. SP-2095 and SP-2235,
invoking Victorias Milling Co., Inc. v. Municipality of Victorias,
etc.,49People v. Siton, et al.,50 and Hon. Ermita v. Hon. Aldecoa-
Delorino.51 They argue that the burden of establishing the
invalidity of an ordinance rests heavily upon the party challenging
its constitutionality. They insist that the questioned ordinances
are proper exercises of police power similar to Telecom. &
Broadcast Attys. of the Phils., Inc. v. COMELEC52 and Social Justice
Society (SJS), et al. v. Hon. Atienza, Jr.53 and that their enactment
finds basis in the social justice principle enshrined in Section 9,54
Article II of the 1987 Constitution.
As to the issue of publication, respondents argue that where the
law provides for its own effectivity, publication in the Official
Gazette is not necessary so long as it is not punitive in character,
citing Balbuna, et al. v. Hon. Secretary of Education, et al.55 and
Askay v. Cosalan.56 Thus, Ordinance No. SP-2095 took effect after
its publication, while Ordinance No. SP-2235 became effective
after its approval on December 26, 2013.
Additionally, the parties articulate the following positions:
On the Socialized Housing Tax
Respondents emphasize that the SHT is pursuant to the social
justice principle found in Sections 1 and 2, Article XIII57 of the
1987 Constitution and Sections 2 (a)58 and 4359 of R.A. No. 7279,
or the Urban Development and Housing Act of 1992 (UDHA).
Relying on Manila Race Horse Trainers Assn., Inc. v. De La
Fuente,60 and Victorias Milling Co., Inc. v. Municipality of
Victorias, etc.,61 respondents assert that Ordinance No. SP-2095
applies equally to all real property owners without discrimination.
There is no way that the ordinance could violate the equal
protection clause because real property owners and informal
settlers do not belong to the same class.
Ordinance No. SP-2095 is also not oppressive since the tax rate
being imposed is consistent with the UDHA. While the law
authorizes LGUs to collect SHT on properties with an assessed
value of more than P50,000.00, the questioned ordinance only
covers properties with an assessed value exceeding P100,000.00.
As well, the ordinance provides for a tax credit equivalent to the
total amount of the special assessment paid by the property
owner beginning in the sixth (6th) year of the effectivity of the
ordinance.
On the contrary, petitioner claims that the collection of the SHT is
tantamount to a penalty imposed on real property owners due to
the failure of respondent Quezon City Mayor and Council to
perform their duty to secure and protect real property owners
from informal settlers, thereby burdening them with the expenses
to provide funds for housing. For petitioner, the SHT cannot be
viewed as a charity from real property owners since it is forced,
not voluntary.
Also, petitioner argues that the collection of the SHT is a kind of
class legislation that violates the right of property owners to equal
protection of the laws since it favors informal settlers who occupy
property not their own and pay no taxes over law-abiding real
property owners who pay income and realty taxes.
Petitioner further contends that respondents characterization of
the SHT as nothing more than an advance payment on the real
property tax has no statutory basis. Allegedly, property tax
cannot be collected before it is due because, under the LGC,
chartered cities are authorized to impose property tax based on
the assessed value and the general revision of assessment that is
made every three (3) years.
As to the rationale of SHT stated in Ordinance No. SP-2095, which,
in turn, was based on Section 43 of the UDHA, petitioner asserts
that there is no specific provision in the 1987 Constitution stating
that the ownership and enjoyment of property bear a social
function. And even if there is, it is seriously doubtful and far-
fetched that the principle means that property owners should
provide funds for the housing of informal settlers and for home
site development. Social justice and police power, petitioner
believes, does not mean imposing a tax on one, or that one has to
give up something, for the benefit of another. At best, the
principle that property ownership and enjoyment bear a social
function is but a reiteration of the Civil Law principle that property
should not be enjoyed and abused to the injury of other
properties and the community, and that the use of the property
may be restricted by police power, the exercise of which is not
involved in this case.
Finally, petitioner alleges that 6 Bistekvilles will be constructed out
of the SHT collected. Bistek is the monicker of respondent City
Mayor. The Bistekvilles makes it clear, therefore, that politicians
will take the credit for the tax imposed on real property owners.
On the Garbage Fee
Respondents claim that Ordinance No. S-2235, which is an
exercise of police power, collects on the average from every
household a garbage fee in the meager amount of thirty-three
(33) centavos per day compared with the sum of P1,659.83 that
the Quezon City Government annually spends for every household
for garbage collection and waste
management.62ChanRoblesVirtualawlibrary
In addition, there is no double taxation because the ordinance
involves a fee. Even assuming that the garbage fee is a tax, the
same cannot be a direct duplicate tax as it is imposed on a
different subject matter and is of a different kind or character.
Based on Villanueva, et al. v. City of Iloilo63 and Victorias Milling
Co., Inc. v. Municipality of Victorias, etc.,64 there is no taxing
twice because the real property tax is imposed on ownership
based on its assessed value, while the garbage fee is required on
the domestic household. The only reference to the property is the
determination of the applicable rate and the facility of collection.
Petitioner argues, however, that Ordinance No. S-2235 cannot be
justified as an exercise of police power. The cases of Calalang v.
Williams,65Patalinghug v. Court of Appeals,66 and Social Justice
Society (SJS), et al. v. Hon. Atienza, Jr.,67 which were cited by
respondents, are inapplicable since the assailed ordinance is a
revenue measure and does not regulate the disposal or other
aspect of garbage.
The subject ordinance, for petitioner, is discriminatory as it
collects garbage fee only from domestic households and not from
restaurants, food courts, fast food chains, and other commercial
dining places that spew garbage much more than residential
property owners.
Petitioner likewise contends that the imposition of garbage fee is
tantamount to double taxation because garbage collection is a
basic and essential public service that should be paid out from
property tax, business tax, transfer tax, amusement tax,
community tax certificate, other taxes, and the IRA of the Quezon
City Government. To bolster the claim, he states that the revenue
collection of the Quezon City Government reached Php13.69
billion in 2012. A small portion of said amount could be spent for
garbage collection and other essential services.
It is further noted that the Quezon City Government already
collects garbage fee under Section 4768 of R.A. No. 9003, or the
Ecological Solid Waste Management Act of 2000, which authorizes
LGUs to impose fees in amounts sufficient to pay the costs of
preparing, adopting, and implementing a solid waste management
plan, and that LGUs have access to the Solid Waste Management
(SWM) Fund created under Section 4669 of the same law. Also,
according to petitioner, it is evident that Ordinance No. S-2235 is
inconsistent with R.A. No. 9003 for while the law encourages
segregation, composting, and recycling of waste, the ordinance
only emphasizes the collection and payment of garbage fee; while
the law calls for an active involvement of the barangay in the
collection, segregation, and recycling of garbage, the ordinance
skips such mandate.
Lastly, in challenging the ordinance, petitioner avers that the
garbage fee was collected even if the required publication of its
approval had not yet elapsed. He notes that on January 7, 2014,
he paid his realty tax which already included the garbage fee.
The Courts Ruling
Respondents correctly argued that an ordinance, as in every law,
is presumed valid.
An ordinance carries with it the presumption of validity. The
question of reasonableness though is open to judicial inquiry.
Much should be left thus to the discretion of municipal
authorities. Courts will go slow in writing off an ordinance as
unreasonable unless the amount is so excessive as to be
prohibitive, arbitrary, unreasonable, oppressive, or confiscatory. A
rule which has gained acceptance is that factors relevant to such
an inquiry are the municipal conditions as a whole and the nature
of the business made subject to imposition.70
For an ordinance to be valid though, it must not only be within the
corporate powers of the LGU to enact and must be passed
according to the procedure prescribed by law, it should also
conform to the following requirements: (1) not contrary to the
Constitution or any statute; (2) not unfair or oppressive; (3) not
partial or discriminatory; (4) not prohibit but may regulate trade;
(5) general and consistent with public policy; and (6) not
unreasonable.71 As jurisprudence indicates, the tests are divided
into the formal (i.e., whether the ordinance was enacted within
the corporate powers of the LGU and whether it was passed in
accordance with the procedure prescribed by law), and the
substantive (i.e., involving inherent merit, like the conformity of
the ordinance with the limitations under the Constitution and the
statutes, as well as with the requirements of fairness and reason,
and its consistency with public
policy).72ChanRoblesVirtualawlibrary
An ordinance must pass muster under the test of constitutionality
and the test of consistency with the prevailing laws.73 If not, it is
void.74 Ordinance should uphold the principle of the supremacy
of the Constitution.75 As to conformity with existing statutes,
Batangas CATV, Inc. v. Court of Appeals76 has this to say:
It is a fundamental principle that municipal ordinances are inferior
in status and subordinate to the laws of the state. An ordinance in
conflict with a state law of general character and statewide
application is universally held to be invalid. The principle is
frequently expressed in the declaration that municipal authorities,
under a general grant of power, cannot adopt ordinances which
infringe the spirit of a state law or repugnant to the general policy
of the state. In every power to pass ordinances given to a
municipality, there is an implied restriction that the ordinances
shall be consistent with the general law. In the language of Justice
Isagani Cruz (ret.), this Court, in Magtajas vs. Pryce Properties
Corp., Inc., ruled that:
The rationale of the requirement that the ordinances should not
contravene a statute is obvious. Municipal governments are only
agents of the national government. Local councils exercise only
delegated legislative powers conferred on them by Congress as
the national lawmaking body. The delegate cannot be superior to
the principal or exercise powers higher than those of the latter. It
is a heresy to suggest that the local government units can undo
the acts of Congress, from which they have derived their power in
the first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and derive their
powers and rights wholly from the legislature. It breathes into
them the breath of life, without which they cannot exist. As it
creates, so it may destroy. As it may destroy, it may abridge and
control. Unless there is some constitutional limitation on the right,
the legislature might, by a single act, and if we can suppose it
capable of so great a folly and so great a wrong, sweep from
existence all of the municipal corporations in the State, and the
corporation could not prevent it. We know of no limitation on the
right so far as to the corporation themselves are concerned. They
are, so to phrase it, the mere tenants at will of the legislature.
This basic relationship between the national legislature and the
local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government
units although in significantly reduced degree now than under our
previous Constitutions. The power to create still includes the
power to destroy. The power to grant still includes the power to
withhold or recall. True, there are certain notable innovations in
the Constitution, like the direct conferment on the local
government units of the power to tax, which cannot now be
withdrawn by mere statute. By and large, however, the national
legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it.77
LGUs must be reminded that they merely form part of the whole;
that the policy of ensuring the autonomy of local governments
was never intended by the drafters of the 1987 Constitution to
create an imperium in imperio and install an intra-sovereign
political subdivision independent of a single sovereign state.78
[M]unicipal corporations are bodies politic and corporate,
created not only as local units of local self-government, but as
governmental agencies of the state. The legislature, by
establishing a municipal corporation, does not divest the State of
any of its sovereignty; absolve itself from its right and duty to
administer the public affairs of the entire state; or divest itself of
any power over the inhabitants of the district which it possesses
before the charter was granted.79ChanRoblesVirtualawlibrary

LGUs are able to legislate only by virtue of a valid delegation of
legislative power from the national legislature; they are mere
agents vested with what is called the power of subordinate
legislation.80 Congress enacted the LGC as the implementing law
for the delegation to the various LGUs of the States great powers,
namely: the police power, the power of eminent domain, and the
power of taxation. The LGC was fashioned to delineate the specific
parameters and limitations to be complied with by each LGU in
the exercise of these delegated powers with the view of making
each LGU a fully functioning subdivision of the State subject to the
constitutional and statutory
limitations.81ChanRoblesVirtualawlibrary
Specifically, with regard to the power of taxation, it is indubitably
the most effective instrument to raise needed revenues in
financing and supporting myriad activities of the LGUs for the
delivery of basic services essential to the promotion of the general
welfare and the enhancement of peace, progress, and prosperity
of the people.82 As this Court opined in National Power Corp. v.
City of Cabanatuan:83cralawlawlibrary
In recent years, the increasing social challenges of the times
expanded the scope of state activity, and taxation has become a
tool to realize social justice and the equitable distribution of
wealth, economic progress and the protection of local industries
as well as public welfare and similar objectives. Taxation assumes
even greater significance with the ratification of the 1987
Constitution. Thenceforth, the power to tax is no longer vested
exclusively on Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other charges pursuant to
Article X, Section 5 of the 1987 Constitution, viz:
Section 5. Each Local Government unit shall have the power to
create its own sources of revenue, to levy taxes, fees and charges
subject to such guidelines and limitations as the Congress may
provide, consistent with the basic policy of local autonomy. Such
taxes, fees and charges shall accrue exclusively to the local
governments.
This paradigm shift results from the realization that genuine
development can be achieved only by strengthening local
autonomy and promoting decentralization of governance. For a
long time, the countrys highly centralized government structure
has bred a culture of dependence among local government
leaders upon the national leadership. It has also dampened the
spirit of initiative, innovation and imaginative resilience in matters
of local development on the part of local government leaders.
The only way to shatter this culture of dependence is to give the
LGUs a wider role in the delivery of basic services, and confer
them sufficient powers to generate their own sources for the
purpose. To achieve this goal, Section 3 of Article X of the 1987
Constitution mandates Congress to enact a local government code
that will, consistent with the basic policy of local autonomy, set
the guidelines and limitations to this grant of taxing powers x x
x84
Fairly recently, We also stated in Pelizloy Realty Corporation v.
Province of Benguet85 that:
The rule governing the taxing power of provinces, cities,
municipalities and barangays is summarized in Icard v. City Council
of Baguio:
It is settled that a municipal corporation unlike a sovereign state is
clothed with no inherent power of taxation. The charter or statute
must plainly show an intent to confer that power or the
municipality, cannot assume it. And the power when granted is to
be construed in strictissimi juris. Any doubt or ambiguity arising
out of the term used in granting that power must be resolved
against the municipality. Inferences, implications, deductions all
these have no place in the interpretation of the taxing power of
a municipal corporation. [Underscoring supplied]
Per Section 5, Article X of the 1987 Constitution, the power to tax
is no longer vested exclusively on Congress; local legislative bodies
are now given direct authority to levy taxes, fees and other
charges. Nevertheless, such authority is subject to such
guidelines and limitations as the Congress may provide.
In conformity with Section 3, Article X of the 1987 Constitution,
Congress enacted Republic Act No. 7160, otherwise known as the
Local Government Code of 1991. Book II of the LGC governs local
taxation and fiscal matters.86
Indeed, LGUs have no inherent power to tax except to the extent
that such power might be delegated to them either by the basic
law or by the statute.87 Under the now prevailing Constitution,
where there is neither a grant nor a prohibition by statute, the tax
power must be deemed to exist although Congress may provide
statutory limitations and guidelines. The basic rationale for the
current rule is to safeguard the viability and self-sufficiency of
local government units by directly granting them general and
broad tax powers. Nevertheless, the fundamental law did not
intend the delegation to be absolute and unconditional; the
constitutional objective obviously is to ensure that, while the local
government units are being strengthened and made more
autonomous, the legislature must still see to it that (a) the
taxpayer will not be over-burdened or saddled with multiple and
unreasonable impositions; (b) each local government unit will
have its fair share of available resources; (c) the resources of the
national government will not be unduly disturbed; and (d) local
taxation will be fair, uniform, and
just.88ChanRoblesVirtualawlibrary
Subject to the provisions of the LGC and consistent with the basic
policy of local autonomy, every LGU is now empowered and
authorized to create its own sources of revenue and to levy taxes,
fees, and charges which shall accrue exclusively to the local
government unit as well as to apply its resources and assets for
productive, developmental, or welfare purposes, in the exercise or
furtherance of their governmental or proprietary powers and
functions.89 The relevant provisions of the LGC which establish
the parameters of the taxing power of the LGUs are as follows:
SECTION 130. Fundamental Principles. The following
fundamental principles shall govern the exercise of the taxing and
other revenue-raising powers of local government units:
(a) Taxation shall be uniform in each local government unit;
(b) Taxes, fees, charges and other impositions shall:
(1) be equitable and based as far as practicable on the taxpayers
ability to pay;
(2) be levied and collected only for public purposes;
(3) not be unjust, excessive, oppressive, or confiscatory;
(4) not be contrary to law, public policy, national economic policy,
or in restraint of trade;
(c) The collection of local taxes, fees, charges and other
impositions shall in no case be let to any private person;
(d) The revenue collected pursuant to the provisions of this Code
shall inure solely to the benefit of, and be subject to the
disposition by, the local government unit levying the tax, fee,
charge or other imposition unless otherwise specifically provided
herein; and,

(e) Each local government unit shall, as far as practicable, evolve a
progressive system of taxation.
SECTION 133. Common Limitations on the Taxing Powers of Local
Government Units. Unless otherwise provided herein, the
exercise of the taxing powers of provinces, cities, municipalities,
and barangays shall not extend to the levy of the following:
(a) Income tax, except when levied on banks and other financial
institutions;
(b) Documentary stamp tax;
(c) Taxes on estates, inheritance, gifts, legacies and other
acquisitions mortis causa, except as otherwise provided herein;
(d) Customs duties, registration fees of vessel and wharfage on
wharves, tonnage dues, and all other kinds of customs fees,
charges and dues except wharfage on wharves constructed and
maintained by the local government unit concerned;
(e) Taxes, fees, and charges and other impositions upon goods
carried into or out of, or passing through, the territorial
jurisdictions of local government units in the guise of charges for
wharfage, tolls for bridges or otherwise, or other taxes, fees, or
charges in any form whatsoever upon such goods or merchandise;
(f) Taxes, fees or charges on agricultural and aquatic products
when sold by marginal farmers or fishermen;
(g) Taxes on business enterprises certified to by the Board of
Investments as pioneer or non-pioneer for a period of six (6) and
four (4) years, respectively from the date of registration;
(h) Excise taxes on articles enumerated under the National
Internal Revenue Code, as amended, and taxes, fees or charges on
petroleum products;
(i) Percentage or value-added tax (VAT) on sales, barters or
exchanges or similar transactions on goods or services except as
otherwise provided herein;
(j) Taxes on the gross receipts of transportation contractors and
persons engaged in the transportation of passengers or freight by
hire and common carriers by air, land or water, except as provided
in this Code;
(k) Taxes on premiums paid by way of reinsurance or retrocession;
(l) Taxes, fees or charges for the registration of motor vehicles and
for the issuance of all kinds of licenses or permits for the driving
thereof, except tricycles;
(m) Taxes, fees, or other charges on Philippine products actually
exported, except as otherwise provided herein;
(n) Taxes, fees, or charges, on Countryside and Barangay Business
Enterprises and cooperatives duly registered under R.A. No. 6810
and Republic Act Numbered Sixty-nine hundred thirty-eight (R.A.
No. 6938) otherwise known as the Cooperative Code of the
Philippines respectively; and
(o) Taxes, fees or charges of any kind on the National
Government, its agencies and instrumentalities, and local
government units.
SECTION 151. Scope of Taxing Powers. Except as otherwise
provided in this Code, the city, may levy the taxes, fees, and
charges which the province or municipality may impose: Provided,
however, That the taxes, fees and charges levied and collected by
highly urbanized and independent component cities shall accrue
to them and distributed in accordance with the provisions of this
Code.
The rates of taxes that the city may levy may exceed the
maximum rates allowed for the province or municipality by not
more than fifty percent (50%) except the rates of professional and
amusement taxes.
SECTION 186. Power To Levy Other Taxes, Fees or Charges. Local
government units may exercise the power to levy taxes, fees or
charges on any base or subject not otherwise specifically
enumerated herein or taxed under the provisions of the National
Internal Revenue Code, as amended, or other applicable laws:
Provided, That the taxes, fees, or charges shall not be unjust,
excessive, oppressive, confiscatory or contrary to declared
national policy: Provided, further, That the ordinance levying such
taxes, fees or charges shall not be enacted without any prior
public hearing conducted for the purpose.
On the Socialized Housing Tax
Contrary to petitioners submission, the 1987 Constitution
explicitly espouses the view that the use of property bears a social
function and that all economic agents shall contribute to the
common good.90 The Court already recognized this in Social
Justice Society (SJS), et al. v. Hon. Atienza, Jr.:91cralawlawlibrary
Property has not only an individual function, insofar as it has to
provide for the needs of the owner, but also a social function
insofar as it has to provide for the needs of the other members of
society. The principle is this:
Police power proceeds from the principle that every holder of
property, however absolute and unqualified may be his title, holds
it under the implied liability that his use of it shall not be injurious
to the equal enjoyment of others having an equal right to the
enjoyment of their property, nor injurious to the right of the
community. Rights of property, like all other social and
conventional rights, are subject to reasonable limitations in their
enjoyment as shall prevent them from being injurious, and to such
reasonable restraints and regulations established by law as the
legislature, under the governing and controlling power vested in
them by the constitution, may think necessary and expedient.92
Police power, which flows from the recognition that salus populi
est suprema lex (the welfare of the people is the supreme law), is
the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good
order or safety and general welfare of the people.93 Property
rights of individuals may be subjected to restraints and burdens in
order to fulfill the objectives of the government in the exercise of
police power. 94 In this jurisdiction, it is well-entrenched that
taxation may be made the implement of the states police
power.95ChanRoblesVirtualawlibrary
Ordinance No. SP-2095 imposes a Socialized Housing Tax
equivalent to 0.5% on the assessed value of land in excess of
Php100,000.00. This special assessment is the same tax referred
to in R.A. No. 7279 or the UDHA.96 The SHT is one of the sources
of funds for urban development and housing program.97 Section
43 of the law provides:
Sec. 43. Socialized Housing Tax. Consistent with the
constitutional principle that the ownership and enjoyment of
property bear a social function and to raise funds for the Program,
all local government units are hereby authorized to impose an
additional one-half percent (0.5%) tax on the assessed value of all
lands in urban areas in excess of Fifty thousand pesos
(P50,000.00).

The rationale of the SHT is found in the preambular clauses of the
subject ordinance, to wit:
WHEREAS, the imposition of additional tax is intended to provide
the City Government with sufficient funds to initiate, implement
and undertake Socialized Housing Projects and other related
preliminary activities;
WHEREAS, the imposition of 0.5% tax will benefit the Socialized
Housing Programs and Projects of the City Government,
specifically the marginalized sector through the acquisition of
properties for human settlements;
WHEREAS, the removal of the urban blight will definitely increase
fair market value of properties in the city[.]
The above-quoted are consistent with the UDHA, which the LGUs
are charged to implement in their respective localities in
coordination with the Housing and Urban Development
Coordinating Council, the national housing agencies, the
Presidential Commission for the Urban Poor, the private sector,
and other non-government organizations.98 It is the declared
policy of the State to undertake a comprehensive and continuing
urban development and housing program that shall, among
others, uplift the conditions of the underprivileged and homeless
citizens in urban areas and in resettlement areas, and provide for
the rational use and development of urban land in order to bring
about, among others, reduction in urban dysfunctions, particularly
those that adversely affect public health, safety and ecology, and
access to land and housing by the underprivileged and homeless
citizens.99 Urban renewal and resettlement shall include the
rehabilitation and development of blighted and slum areas100
and the resettlement of program beneficiaries in accordance with
the provisions of the UDHA.101ChanRoblesVirtualawlibrary
Under the UDHA, socialized housing102 shall be the primary
strategy in providing shelter for the underprivileged and
homeless.103 The LGU or the NHA, in cooperation with the
private developers and concerned agencies, shall provide
socialized housing or resettlement areas with basic services and
facilities such as potable water, power and electricity, and an
adequate power distribution system, sewerage facilities, and an
efficient and adequate solid waste disposal system; and access to
primary roads and transportation facilities.104 The provisions for
health, education, communications, security, recreation, relief and
welfare shall also be planned and be given priority for
implementation by the LGU and concerned agencies in
cooperation with the private sector and the beneficiaries
themselves.105ChanRoblesVirtualawlibrary
Moreover, within two years from the effectivity of the UDHA, the
LGUs, in coordination with the NHA, are directed to implement
the relocation and resettlement of persons living in danger areas
such as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public places like sidewalks,
roads, parks, and playgrounds.106 In coordination with the NHA,
the LGUs shall provide relocation or resettlement sites with basic
services and facilities and access to employment and livelihood
opportunities sufficient to meet the basic needs of the affected
families.107ChanRoblesVirtualawlibrary
Clearly, the SHT charged by the Quezon City Government is a tax
which is within its power to impose. Aside from the specific
authority vested by Section 43 of the UDHA, cities are allowed to
exercise such other powers and discharge such other functions
and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities
which include, among others, programs and projects for low-cost
housing and other mass dwellings.108 The collections made
accrue to its socialized housing programs and projects. The tax is
not a pure exercise of taxing power or merely to raise revenue; it
is levied with a regulatory purpose. The levy is primarily in the
exercise of the police power for the general welfare of the entire
city. It is greatly imbued with public interest. Removing slum areas
in Quezon City is not only beneficial to the underprivileged and
homeless constituents but advantageous to the real property
owners as well. The situation will improve the value of the their
property investments, fully enjoying the same in view of an
orderly, secure, and safe community, and will enhance the quality
of life of the poor, making them law-abiding constituents and
better consumers of business products.
Though broad and far-reaching, police power is subordinate to
constitutional limitations and is subject to the requirement that its
exercise must be reasonable and for the public good.109 In the
words of City of Manila v. Hon. Laguio, Jr.:110cralawlawlibrary
The police power granted to local government units must always
be exercised with utmost observance of the rights of the people
to due process and equal protection of the law. Such power
cannot be exercised whimsically, arbitrarily or despotically as its
exercise is subject to a qualification, limitation or restriction
demanded by the respect and regard due to the prescription of
the fundamental law, particularly those forming part of the Bill of
Rights. Individual rights, it bears emphasis, may be adversely
affected only to the extent that may fairly be required by the
legitimate demands of public interest or public welfare. Due
process requires the intrinsic validity of the law in interfering with
the rights of the person to his life, liberty and property.
To successfully invoke the exercise of police power as the
rationale for the enactment of the Ordinance, and to free it from
the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from
those of a particular class, require an interference with private
rights, but the means adopted must be reasonably necessary for
the accomplishment of the purpose and not unduly oppressive
upon individuals. It must be evident that no other alternative for
the accomplishment of the purpose less intrusive of private rights
can work. A reasonable relation must exist between the purposes
of the police measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.
Lacking a concurrence of these two requisites, the police measure
shall be struck down as an arbitrary intrusion into private rights
a violation of the due process clause.111
As with the State, LGUs may be considered as having properly
exercised their police power only if there is a lawful subject and a
lawful method or, to be precise, if the following requisites are
met: (1) the interests of the public generally, as distinguished from
those of a particular class, require its exercise and (2) the means
employed are reasonably necessary for the accomplishment of
the purpose and not unduly oppressive upon
individuals.112ChanRoblesVirtualawlibrary
In this case, petitioner argues that the SHT is a penalty imposed on
real property owners because it burdens them with expenses to
provide funds for the housing of informal settlers, and that it is a
class legislation since it favors the latter who occupy properties
which is not their own and pay no taxes.
We disagree.
Equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and
responsibilities imposed.113 The guarantee means that no person
or class of persons shall be denied the same protection of laws
which is enjoyed by other persons or other classes in like
circumstances.114 Similar subjects should not be treated
differently so as to give undue favor to some and unjustly
discriminate against others.115 The law may, therefore, treat and
regulate one class differently from another class provided there
are real and substantial differences to distinguish one class from
another.116ChanRoblesVirtualawlibrary
An ordinance based on reasonable classification does not violate
the constitutional guaranty of the equal protection of the law. The
requirements for a valid and reasonable classification are: (1) it
must rest on substantial distinctions; (2) it must be germane to
the purpose of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of
the same class.117ChanRoblesVirtualawlibrary
For the purpose of undertaking a comprehensive and continuing
urban development and housing program, the disparities between
a real property owner and an informal settler as two distinct
classes are too obvious and need not be discussed at length. The
differentiation conforms to the practical dictates of justice and
equity and is not discriminatory within the meaning of the
Constitution. Notably, the public purpose of a tax may legally exist
even if the motive which impelled the legislature to impose the
tax was to favor one over another.118 It is inherent in the power
to tax that a State is free to select the subjects of taxation.119
Inequities which result from a singling out of one particular class
for taxation or exemption infringe no constitutional
limitation.120ChanRoblesVirtualawlibrary
Further, the reasonableness of Ordinance No. SP-2095 cannot be
disputed. It is not confiscatory or oppressive since the tax being
imposed therein is below what the UDHA actually allows. As
pointed out by respondents, while the law authorizes LGUs to
collect SHT on lands with an assessed value of more than
P50,000.00, the questioned ordinance only covers lands with an
assessed value exceeding P100,000.00. Even better, on certain
conditions, the ordinance grants a tax credit equivalent to the
total amount of the special assessment paid beginning in the sixth
(6th) year of its effectivity. Far from being obnoxious, the
provisions of the subject ordinance are fair and just.
On the Garbage Fee
In the United States of America, it has been held that the
authority of a municipality to regulate garbage falls within its
police power to protect public health, safety, and welfare.121 As
opined, the purposes and policy underpinnings of the police
power to regulate the collection and disposal of solid waste are:
(1) to preserve and protect the public health and welfare as well
as the environment by minimizing or eliminating a source of
disease and preventing and abating nuisances; and (2) to defray
costs and ensure financial stability of the system for the benefit of
the entire community, with the sum of all charges marshalled and
designed to pay for the expense of a systemic refuse disposal
scheme.122ChanRoblesVirtualawlibrary
Ordinances regulating waste removal carry a strong presumption
of validity.123 Not surprisingly, the overwhelming majority of U.S.
cases addressing a city's authority to impose mandatory garbage
service and fees have upheld the ordinances against constitutional
and statutory challenges.124ChanRoblesVirtualawlibrary
A municipality has an affirmative duty to supervise and control the
collection of garbage within its corporate limits.125 The LGC
specifically assigns the responsibility of regulation and oversight of
solid waste to local governing bodies because the Legislature
determined that such bodies were in the best position to develop
efficient waste management programs.126 To impose on local
governments the responsibility to regulate solid waste but not
grant them the authority necessary to fulfill the same would lead
to an absurd result.127 As held in one U.S. case:
x x x When a municipality has general authority to regulate a
particular subject matter, the manner and means of exercising
those powers, where not specifically prescribed by the legislature,
are left to the discretion of the municipal authorities. x x x Leaving
the manner of exercising municipal powers to the discretion of
municipal authorities "implies a range of reasonableness within
which a municipality's exercise of discretion will not be interfered
with or upset by the judiciary."128
In this jurisdiction, pursuant to Section 16 of the LGC and in the
proper exercise of its corporate powers under Section 22 of the
same, the Sangguniang Panlungsod of Quezon City, like other local
legislative bodies, is empowered to enact ordinances, approve
resolutions, and appropriate funds for the general welfare of the
city and its inhabitants.129 Section 16 of the LGC provides:
SECTION 16. General Welfare. Every local government unit shall
exercise the powers expressly granted, those necessarily implied
therefrom, as well as powers necessary, appropriate, or incidental
for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall
ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the
right of the people to a balanced ecology, encourage and support
the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance
economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve
the comfort and convenience of their inhabitants.
The general welfare clause is the delegation in statutory form of
the police power of the State to LGUs.130 The provisions related
thereto are liberally interpreted to give more powers to LGUs in
accelerating economic development and upgrading the quality of
life for the people in the community.131 Wide discretion is vested
on the legislative authority to determine not only what the
interests of the public require but also what measures are
necessary for the protection of such interests since the
Sanggunian is in the best position to determine the needs of its
constituents.132ChanRoblesVirtualawlibrary
One of the operative principles of decentralization is that, subject
to the provisions of the LGC and national policies, the LGUs shall
share with the national government the responsibility in the
management and maintenance of ecological balance within their
territorial jurisdiction.133 In this regard, cities are allowed to
exercise such other powers and discharge such other functions
and responsibilities as are necessary, appropriate, or incidental to
efficient and effective provision of the basic services and facilities
which include, among others, solid waste disposal system or
environmental management system and services or facilities
related to general hygiene and sanitation.134 R.A. No. 9003, or
the Ecological Solid Waste Management Act of 2000,135 affirms
this authority as it expresses that the LGUs shall be primarily
responsible for the implementation and enforcement of its
provisions within their respective jurisdictions while establishing a
cooperative effort among the national government, other local
government units, non-government organizations, and the private
sector.136ChanRoblesVirtualawlibrary
Necessarily, LGUs are statutorily sanctioned to impose and collect
such reasonable fees and charges for services rendered.137
Charges refer to pecuniary liability, as rents or fees against
persons or property, while Fee means a charge fixed by law or
ordinance for the regulation or inspection of a business or
activity.138ChanRoblesVirtualawlibrary

The fee imposed for garbage collections under Ordinance No. SP-
2235 is a charge fixed for the regulation of an activity. The basis
for this could be discerned from the foreword of said Ordinance,
to wit:
WHEREAS, Quezon City being the largest and premiere city in the
Philippines in terms of population and urban geographical areas,
apart from being competent and efficient in the delivery of public
service, apparently requires a big budgetary allocation in order to
address the problems relative and connected to the prompt and
efficient delivery of basic services such as the effective system of
waste management, public information programs on proper
garbage and proper waste disposal, including the imposition of
waste regulatory measures;
WHEREAS, to help augment the funds to be spent for the citys
waste management system, the City Government through the
Sangguniang Panlungsod deems it necessary to impose a schedule
of reasonable fees or charges for the garbage collection services
for residential (domestic household) that it renders to the public.
Certainly, as opposed to petitioners opinion, the garbage fee is
not a tax. In Smart Communications, Inc. v. Municipality of Malvar,
Batangas,139 the Court had the occasion to distinguish these two
concepts:
In Progressive Development Corporation v. Quezon City, the Court
declared that if the generating of revenue is the primary purpose
and regulation is merely incidental, the imposition is a tax; but if
regulation is the primary purpose, the fact that incidentally
revenue is also obtained does not make the imposition a tax.
In Victorias Milling Co., Inc. v. Municipality of Victorias, the Court
reiterated that the purpose and effect of the imposition
determine whether it is a tax or a fee, and that the lack of any
standards for such imposition gives the presumption that the
same is a tax.
We accordingly say that the designation given by the municipal
authorities does not decide whether the imposition is properly a
license tax or a license fee. The determining factors are the
purpose and effect of the imposition as may be apparent from the
provisions of the ordinance. Thus, [w]hen no police inspection,
supervision, or regulation is provided, nor any standard set for the
applicant to establish, or that he agrees to attain or maintain, but
any and all persons engaged in the business designated, without
qualification or hindrance, may come, and a license on payment of
the stipulated sum will issue, to do business, subject to no
prescribed rule of conduct and under no guardian eye, but
according to the unrestrained judgment or fancy of the applicant
and licensee, the presumption is strong that the power of
taxation, and not the police power, is being exercised.
In Georgia, U.S.A., assessments for garbage collection services
have been consistently treated as a fee and not a tax.140 In
another U.S. case,141 the garbage fee was considered as a
"service charge" rather than a tax as it was actually a fee for a
service given by the city which had previously been provided at no
cost to its citizens.
Hence, not being a tax, the contention that the garbage fee under
Ordinance No. SP-2235 violates the rule on double taxation142
must necessarily fail.
Nonetheless, although a special charge, tax, or assessment may be
imposed by a municipal corporation, it must be reasonably
commensurate to the cost of providing the garbage service.143 To
pass judicial scrutiny, a regulatory fee must not produce revenue
in excess of the cost of the regulation because such fee will be
construed as an illegal tax when the revenue generated by the
regulation exceeds the cost of the
regulation.144ChanRoblesVirtualawlibrary
Petitioner argues that the Quezon City Government already
collects garbage fee under Section 47 of R.A. No. 9003, which
authorizes LGUs to impose fees in amounts sufficient to pay the
costs of preparing, adopting, and implementing a solid waste
management plan, and that it has access to the SWM Fund under
Section 46 of the same law. Moreover, Ordinance No. S-2235 is
inconsistent with R.A. No. 9003, because the ordinance
emphasizes the collection and payment of garbage fee with no
concern for segregation, composting and recycling of wastes. It
also skips the mandate of the law calling for the active
involvement of the barangay in the collection, segregation, and
recycling of garbage.
We now turn to the pertinent provisions of R.A. No. 9003.
Under R.A. No. 9003, it is the declared policy of the State to adopt
a systematic, comprehensive and ecological solid waste
management program which shall, among others, ensure the
proper segregation, collection, transport, storage, treatment and
disposal of solid waste through the formulation and adoption of
the best environmental practices in ecological waste
management.145 The law provides that segregation and
collection of solid waste shall be conducted at the barangay level,
specifically for biodegradable, compostable and reusable wastes,
while the collection of non-recyclable materials and special wastes
shall be the responsibility of the municipality or city.146
Mandatory segregation of solid wastes shall primarily be
conducted at the source, to include household, institutional,
industrial, commercial and agricultural sources.147Segregation at
source refers to a solid waste management practice of separating,
at the point of origin, different materials found in solid waste in
order to promote recycling and re-use of resources and to reduce
the volume of waste for collection and disposal.148 Based on Rule
XVII of the Department of Environment and Natural Resources
(DENR) Administrative Order No. 2001-34, Series of 2001,149
which is the Implementing Rules and Regulations (IRR) of R.A. No.
9003, barangays shall be responsible for the collection,
segregation, and recycling of biodegradable, recyclable,
compostable and reusable wastes.150 For the purpose, a
Materials Recovery Facility (MRF), which shall receive
biodegradable wastes for composting and mixed non-
biodegradable wastes for final segregation, re-use and recycling, is
to be established in every barangay or cluster of
barangays.151ChanRoblesVirtualawlibrary
According to R.A. 9003, an LGU, through its local solid waste
management board, is mandated by law to prepare a 10-year
solid waste management plan consistent with the National Solid
Waste Management Framework.152 The plan shall be for the re-
use, recycling and composting of wastes generated in its
jurisdiction; ensure the efficient management of solid waste
generated within its jurisdiction; and place primary emphasis on
implementation of all feasible re-use, recycling, and composting
programs while identifying the amount of landfill and
transformation capacity that will be needed for solid waste which
cannot be re-used, recycled, or composted.153 One of the
components of the solid waste management plan is source
reduction:
(e) Source reduction The source reduction component shall
include a program and implementation schedule which shows the
methods by which the LGU will, in combination with the recycling
and composting components, reduce a sufficient amount of solid
waste disposed of in accordance with the diversion requirements
of Section 20.
The source reduction component shall describe the following:

(1) strategies in reducing the volume of solid waste generated at
source;
(2) measures for implementing such strategies and the resources
necessary to carry out such activities;
(3) other appropriate waste reduction technologies that may also
be considered, provided that such technologies conform with the
standards set pursuant to this Act;
(4) the types of wastes to be reduced pursuant to Section 15 of
this Act;
(5) the methods that the LGU will use to determine the categories
of solid wastes to be diverted from disposal at a disposal facility
through re-use, recycling and composting; and
(6) new facilities and of expansion of existing facilities which will
be needed to implement re-use, recycling and composting.
The LGU source reduction component shall include the evaluation
and identification of rate structures and fees for the purpose of
reducing the amount of waste generated, and other source
reduction strategies, including but not limited to, programs and
economic incentives provided under Sec. 45 of this Act to reduce
the use of non-recyclable materials, replace disposable materials
and products with reusable materials and products, reduce
packaging, and increase the efficiency of the use of paper,
cardboard, glass, metal, and other materials. The waste reduction
activities of the community shall also take into account, among
others, local capability, economic viability, technical
requirements, social concerns, disposition of residual waste and
environmental impact: Provided, That, projection of future
facilities needed and estimated cost shall be incorporated in the
plan. x x x154
The solid waste management plan shall also include an
implementation schedule for solid waste diversion:
SEC. 20. Establishing Mandatory Solid Waste Diversion. Each
LGU plan shall include an implementation schedule which shows
that within five (5) years after the effectivity of this Act, the LGU
shall divert at least 25% of all solid waste from waste disposal
facilities through re-use, recycling, and composting activities and
other resource recovery activities: Provided, That the waste
diversion goals shall be increased every three (3) years thereafter:
Provided, further, That nothing in this Section prohibits a local
government unit from implementing re-use, recycling, and
composting activities designed to exceed the goal.
The baseline for the twenty-five percent (25%) shall be derived
from the waste characterization result155 that each LGU is
mandated to undertake.156ChanRoblesVirtualawlibrary
In accordance with Section 46 of R.A. No. 9003, the LGUs are
entitled to avail of the SWM Fund on the basis of their approved
solid waste management plan. Aside from this, they may also
impose SWM Fees under Section 47 of the law, which states:
SEC. 47. Authority to Collect Solid Waste Management Fees The
local government unit shall impose fees in amounts sufficient to
pay the costs of preparing, adopting, and implementing a solid
waste management plan prepared pursuant to this Act. The fees
shall be based on the following minimum factors:
(a) types of solid waste;
(b) amount/volume of waste; and
(c) distance of the transfer station to the waste management
facility.
The fees shall be used to pay the actual costs incurred by the LGU
in collecting the local fees. In determining the amounts of the
fees, an LGU shall include only those costs directly related to the
adoption and implementation of the plan and the setting and
collection of the local fees.
Rule XVII of the IRR of R.A. No. 9003 sets forth the details:
Section 1. Power to Collect Solid Waste Management Fees. The
Local SWM Board/Local SWM Cluster Board shall impose fees on
the SWM services provided for by the LGU and/or any authorized
organization or unit. In determining the amounts of the fees, a
Local SWM Board/Local SWM Cluster Board shall include only
those costs directly related to the adoption and implementation
of the SWM Plan and the setting and collection of the local fees.
This power to impose fees may be ceded to the private sector and
civil society groups which have been duly accredited by the Local
SWM Board/Local SWM Cluster Board; provided, the SWM fees
shall be covered by a Contract or Memorandum of Agreement
between the respective board and the private sector or civil
society group.
The fees shall pay for the costs of preparing, adopting and
implementing a SWM Plan prepared pursuant to the Act. Further,
the fees shall also be used to pay the actual costs incurred in
collecting the local fees and for project sustainability.
Section 2. Basis of SWM Service Fees
Reasonable SWM service fees shall be computed based on but not
limited to the following minimum factors:
a) Types of solid waste to include special waste
b) amount/volume of waste
c) distance of the transfer station to the waste management
facility
d) capacity or type of LGU constituency
e) cost of construction
f) cost of management
g) type of technology
Section 3. Collection of Fees. Fees may be collected
corresponding to the following levels:
a) Barangay The Barangay may impose fees for collection and
segregation of biodegradable, compostable and reusable wastes
from households, commerce, other sources of domestic wastes,
and for the use of Barangay MRFs. The computation of the fees
shall be established by the respective SWM boards. The manner of
collection of the fees shall be dependent on the style of
administration of respective Barangay Councils. However, all
transactions shall follow the Commission on Audit rules on
collection of fees.
b) Municipality The municipal and city councils may impose fees
on the barangay MRFs for the collection and transport of non-
recyclable and special wastes and for the disposal of these into
the sanitary landfill. The level and procedure for exacting fees
shall be defined by the Local SWM Board/Local SWM Cluster
Board and supported by LGU ordinances, however, payments shall
be consistent with the accounting system of government.

c) Private Sector/Civil Society Group On the basis of the
stipulations of contract or Memorandum of Agreement, the
private sector or civil society group shall impose fees for
collection, transport and tipping in their SLFs. Receipts and
invoices shall be issued to the paying public or to the government.
From the afore-quoted provisions, it is clear that the authority of a
municipality or city to impose fees is limited to the collection and
transport of non-recyclable and special wastes and for the
disposal of these into the sanitary landfill. Barangays, on the other
hand, have the authority to impose fees for the collection and
segregation of biodegradable, compostable and reusable wastes
from households, commerce, other sources of domestic wastes,
and for the use of barangay MRFs. This is but consistent with
Section 10 of R.A. No. 9003 directing that segregation and
collection of biodegradable, compostable and reusable wastes
shall be conducted at the barangay level, while the collection of
non-recyclable materials and special wastes shall be the
responsibility of the municipality or city.
In this case, the alleged bases of Ordinance No. S-2235 in
imposing the garbage fee is the volume of waste currently
generated by each person in Quezon City, which purportedly
stands at 0.66 kilogram per day, and the increasing trend of waste
generation for the past three years.157 Respondents did not
elaborate any further. The figure presented does not reflect the
specific types of wastes generated whether residential, market,
commercial, industrial, construction/demolition, street waste,
agricultural, agro-industrial, institutional, etc. It is reasonable,
therefore, for the Court to presume that such amount pertains to
the totality of wastes, without any distinction, generated by
Quezon City constituents. To reiterate, however, the authority of
a municipality or city to impose fees extends only to those related
to the collection and transport of non-recyclable and special
wastes.
Granting, for the sake of argument, that the 0.66 kilogram of solid
waste per day refers only to non-recyclable and special wastes,
still, We cannot sustain the validity of Ordinance No. S-2235. It
violates the equal protection clause of the Constitution and the
provisions of the LGC that an ordinance must be equitable and
based as far as practicable on the taxpayers ability to pay, and not
unjust, excessive, oppressive,
confiscatory.158ChanRoblesVirtualawlibrary
In the subject ordinance, the rates of the imposable fee depend
on land or floor area and whether the payee is an occupant of a
lot, condominium, social housing project or apartment. For easy
reference, the relevant provision is again quoted below:
On all domestic households in Quezon City;
a)
High-rise Condominium The Homeowners Association of high
rise condominiums shall pay the annual garbage fee on the total
size of the entire condominium and socialized Housing Unit and an
additional garbage fee shall be collected based on area occupied
for every unit already sold or being amortized.
b)
High-rise apartment units Owners of high-rise apartment units
shall pay the annual garbage fee on the total lot size of the entire
apartment and an additional garbage fee based on the schedule
prescribed herein for every unit occupied.
For the purpose of garbage collection, there is, in fact, no
substantial distinction between an occupant of a lot, on one hand,
and an occupant of a unit in a condominium, socialized housing
project or apartment, on the other hand. Most likely, garbage
output produced by these types of occupants is uniform and does
not vary to a large degree; thus, a similar schedule of fee is both
just and equitable.159ChanRoblesVirtualawlibrary
The rates being charged by the ordinance are unjust and
inequitable: a resident of a 200 sq. m. unit in a condominium or
socialized housing project has to pay twice the amount than a
resident of a lot similar in size; unlike unit occupants, all occupants
of a lot with an area of 200 sq. m. and less have to pay a fixed rate
of Php100.00; and the same amount of garbage fee is imposed
regardless of whether the resident is from a condominium or from
a socialized housing project.
Indeed, the classifications under Ordinance No. S-2235 are not
germane to its declared purpose of promoting shared
responsibility with the residents to attack their common mindless
attitude in over-consuming the present resources and in
generating waste.160 Instead of simplistically categorizing the
payee into land or floor occupant of a lot or unit of a
condominium, socialized housing project or apartment,
respondent City Council should have considered factors that could
truly measure the amount of wastes generated and the
appropriate fee for its collection. Factors include, among others,
household age and size, accessibility to waste collection,
population density of the barangay or district, capacity to pay, and
actual occupancy of the property. R.A. No. 9003 may also be
looked into for guidance. Under said law, SWM service fees may
be computed based on minimum factors such as types of solid
waste to include special waste, amount/volume of waste, distance
of the transfer station to the waste management facility, capacity
or type of LGU constituency, cost of construction, cost of
management, and type of technology. With respect to utility rates
set by municipalities, a municipality has the right to classify
consumers under reasonable classifications based upon factors
such as the cost of service, the purpose for which the service or
the product is received, the quantity or the amount received, the
different character of the service furnished, the time of its use or
any other matter which presents a substantial difference as a
ground of distinction.161cralawlawlibrary
[A] lack of uniformity in the rate charged is not necessarily
unlawful discrimination. The establishment of classifications and
the charging of different rates for the several classes is not
unreasonable and does not violate the requirements of equality
and uniformity. Discrimination to be unlawful must draw an unfair
line or strike an unfair balance between those in like
circumstances having equal rights and privileges. Discrimination
with respect to rates charged does not vitiate unless it is arbitrary
and without a reasonable fact basis or justification.162
On top of an unreasonable classification, the penalty clause of
Ordinance No. SP-2235, which states:
SECTION 3. Penalty Clause A penalty of 25% of the garbage fee
due plus an interest of 2% per month or a fraction thereof
(interest) shall be charged against a household owner who refuses
to pay the garbage fee herein imposed.
lacks the limitation required by Section 168 of the LGC, which
provides:
SECTION 168. Surcharges and Penalties on Unpaid Taxes, Fees, or
Charges. The sanggunian may impose a surcharge not exceeding
twenty-five (25%) of the amount of taxes, fees or charges not paid
on time and an interest at the rate not exceeding two percent
(2%) per month of the unpaid taxes, fees or charges including
surcharges, until such amount is fully paid but in no case shall the
total interest on the unpaid amount or portion thereof exceed
thirty-six (36) months. (Emphasis supplied)
Finally, on the issue of publication of the two challenged
ordinances.
Petitioner argues that the garbage fee was collected even if the
required publication of its approval had not yet elapsed. He notes
that he paid his realty tax on January 7, 2014 which already
included the garbage fee. Respondents counter that if the law
provides for its own effectivity, publication in the Official Gazette
is not necessary so long as it is not penal in nature. Allegedly,
Ordinance No. SP-2095 took effect after its publication while
Ordinance No. SP-2235 became effective after its approval on
December 26, 2013.
The pertinent provisions of the LGC state:
SECTION 59. Effectivity of Ordinances or Resolutions. (a) Unless
otherwise stated in the ordinance or the resolution approving the
local development plan and public investment program, the same
shall take effect after ten (10) days from the date a copy thereof is
posted in a bulletin board at the entrance of the provincial capitol
or city, municipal, or barangay hall, as the case may be, and in at
least two (2) other conspicuous places in the local government
unit concerned.
The case records are bereft of any evidence to prove petitioners
negative allegation that respondents did not comply with the
posting and publication requirements of the law. Thus, We are
constrained not to give credit to his unsupported claim.
WHEREFORE, the petition is PARTIALLY GRANTED. The
constitutionality and legality of Ordinance No. SP-2095, S-2011, or
the Socialized Housing Tax of Quezon City, is SUSTAINED for
being consistent with Section 43 of Republic Act No. 7279. On the
other hand, Ordinance No. SP-2235, S-2013, which collects an
annual garbage fee on all domestic households in Quezon City, is
hereby declared as UNCONSTITUTIONAL AND ILLEGAL.
Respondents are DIRECTED to REFUND with reasonable dispatch
the sums of money collected relative to its enforcement.
The temporary restraining order issued by the Court on February
5, 2014 is LIFTED with respect to Ordinance No. SP-2095. In
contrast, respondents are PERMANENTLY ENJOINED from taking
any further action to enforce Ordinance No. SP. 2235.

(b) The secretary to the sanggunian concerned shall cause the

posting of an ordinance or resolution in the bulletin board at the
entrance of the provincial capitol and the city, municipal, or
barangay hall in at least two (2) conspicuous places in the local
government unit concerned not later than five (5) days after
approval thereof.

The text of the ordinance or resolution shall be disseminated and

posted in Filipino or English and in the language or dialect
understood by the majority of the people in the local government
unit concerned, and the secretary to the sanggunian shall record
such fact in a book kept for the purpose, stating the dates of
approval and posting.

(c) The gist of all ordinances with penal sanctions shall be

published in a newspaper of general circulation within the
province where the local legislative body concerned belongs. In
the absence of any newspaper of general circulation within the
province, posting of such ordinances shall be made in all
municipalities and cities of the province where the sanggunian of
origin is situated.

(d) In the case of highly urbanized and independent component

cities, the main features of the ordinance or resolution duly
enacted or adopted shall, in addition to being posted, be
published once in a local newspaper of general circulation within
the city: Provided, That in the absence thereof the ordinance or
resolution shall be published in any newspaper of general
circulation.

SECTION 188. Publication of Tax Ordinances and Revenue

Measures. Within ten (10) days after their approval, certified
true copies of all provincial, city, and municipal tax ordinances or
revenue measures shall be published in full for three (3)
consecutive days in a newspaper of local circulation: Provided,
however, That in provinces, cities and municipalities where there
are no newspapers of local circulation, the same may be posted in
at least two (2) conspicuous and publicly accessible places.
(Emphasis supplied)

On October 17, 2011, respondent Quezon City Council enacted

Ordinance No. SP-2095, which provides that it would take effect
after its publication in a newspaper of general circulation.163 On
the other hand, Ordinance No. SP-2235, which was passed by the
City Council on December 16, 2013, provides that it would be
effective upon its approval.164 Ten (10) days after its enactment,
or on December 26, 2013, respondent City Mayor approved the
same.165ChanRoblesVirtualawlibrary