CLEAN AIR ACT

[G.R. No. 147465. January 30, 2002]

METROPOLITAN MANILA DEVELOPMENT AUTHORITY, petitioner,

vs. JANCOM ENVIRONMENTAL CORPORATION and JANCOM
INTERNATIONAL DEVELOPMENT PROJECTS PTY. LIMITED OF
AUSTRALIA, respondents.

DECISION
MELO, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the
Rules of Civil Procedure filed by petitioner Metropolitan Manila Development
Authority (MMDA), seeking to reverse and set aside the November 13, 2000
decision of the Court of Appeals declaring valid and perfected the waste
management contract entered into by the Republic of the Philippines,
represented by the Secretary of National Resources and the Executive
Committee to oversee the build-operate-transfer implementation of solid
waste management projects, and JANCOM Environmental Corporation.
The pertinent facts are as follows:
In 1994, then President Fidel V. Ramos issued Presidential Memorandum
Order No. 202 creating the Executive Committee (EXECOM) to oversee the
BOT implementation of solid waste management projects, headed by the
Chairman of the MMDA and the Cabinet Officer for Regional Development-
National Capital Region (CORD-NCR). The EXECOM was to oversee and
develop waste-to-energy projects for the waste disposal sites in San Mateo,
Rizal and Carmona, Cavite under the build-operate-transfer (BOT) scheme.
The terms of reference for the waste-to-energy projects provided that its
proponents should have the capability to establish municipal solid waste
thermal plants using incineration technology. This type of technology was
selected because of its alleged advantages of greatly reduced waste volume,
prolongation of the service life of the disposal site, and generation of
electricity.
While eleven (11) proponents submitted their pre-qualification documents,
most failed to comply with the requirements under Section 5.4 of the
Implementing Rules and Regulations (IRR) of Republic Act No. 6957,
otherwise known as the Build-Operate-Transfer Law. On July 21, 1995, the
Pre-qualification, Bids and Awards Committee (PBAC) recommended the pre-
qualification of three proponents, namely: i) JANCOM International Pty. Ltd.;
ii) First Philippine International W-E Managers; and iii) PACTECH
Development Corporation. On July 26, 1995, the EXECOM approved the
recommendation of the PBAC. On July 27, 1995, MMDA forwarded to the
Investment Coordinating Committee (ICC) Secretariat the pre-feasibility study
on the privatization of the Carmona and San Mateo landfill sites. The project
was later presented to the ICC-Technical Board (ICC-TB) and then endorsed
to the ICC-Cabinet Committee (ICC-CC).
On May 2, 1996, the PBAC conducted a pre-bid conference where it
required the three pre-qualified bidders to submit, within ninety (90) days, their
bid proposals. On August 2, 1996, JANCOM and First Philippines requested
for an extension of time to submit their bids. PACTECH, on the other hand,
withdrew from the bidding.
Subsequently, JANCOM entered into a partnership with Asea Brown
Boveri (ABB) to form JANCOM Environmental Corporation while First
Philippines formed a partnership with OGDEN. Due to the change in the
composition of the proponents, particularly in their technology partners and
contractors, the PBAC conducted a post pre-qualification evaluation.
During the second bid conference, the bid proposals of First Philippines for
the Carmona site and JANCOM for the San Mateo site were found to be
complete and responsive. Consequently, on February 12, 1997, JANCOM and
First Philippines were declared the winning bidders, respectively, for the San
Mateo and the Carmona projects.
In a letter dated February 27, 1997, then MMDA Chairman Prospero I.
Oreta informed JANCOMs Chief Executive Officer Jay Alparslan that the
EXECOM had approved the PBAC recommendation to award to JANCOM the
San Mateo Waste-to-Energy Project on the basis of the final Evaluation
Report declaring JANCOM International Ltd., Pty., together with Asea Brown
Boveri (ABB), as the sole complying (winning) bidder for the San Mateo
Waste Disposal site, subject to negotiation and mutual approval of the terms
and conditions of the contract of award. The letter also notified Alparslan that
the EXECOM had created a negotiating team composed of Secretary General
Antonio Hidalgo of the Housing and Urban Development Coordinating
Council, Director Ronald G. Fontamillas, General Manager Roberto
Nacianceno of MMDA, and Atty. Eduardo Torres of the host local government
unit to work out and finalize the contract award. Chairman Oreta requested
JANCOM to submit to the EXECOM the composition of its own negotiating
team.
Thereafter, after a series of meetings and consultations between the
negotiating teams of EXECOM and JANCOM, a draft BOT contract was
prepared and presented to the Presidential Task Force on Solid Waste
Management.
On December 19, 1997, the BOT Contract for the waste-to-energy project
was signed between JANCOM and the Philippine Government, represented
by the Presidential Task Force on Solid Waste Management through DENR
Secretary Victor Ramos, CORD-NCR Chairman Dionisio dela Serna, and
MMDA Chairman Prospero Oreta.
On March 5, 1998, the BOT contract was submitted to President Ramos
for approval but this was too close to the end of his term which expired without
him signing the contract. President Ramos, however, endorsed the contract to
incoming President Joseph E. Estrada.
With the change of administration, the composition of the EXECOM also
changed. Memorandum Order No. 19 appointed the Chairman of the
Presidential Committee on Flagship Programs and Project to be the EXECOM
chairman. Too, Republic Act No. 8749, otherwise known as the Clean Air Act
of 1999, was passed by Congress. And due to the clamor of residents of Rizal
province, President Estrada had, in the interim, also ordered the closure of
the San Mateo landfill. Due to these circumstances, the Greater Manila Solid
Waste Management Committee adopted a resolution not to pursue the BOT
contract with JANCOM. Subsequently, in a letter dated November 4, 1999,
Roberto Aventajado, Chairman of the Presidential Committee on Flagship
Programs and Project informed Mr. Jay Alparslan, Chairman of JANCOM, that
due to changes in policy and economic environment (Clean Air Act and non-
availability of the San Mateo landfill), the implementation of the BOT contract
executed and signed between JANCOM and the Philippine Government
would no longer be pursued. The letter stated that other alternative
implementation arrangements for solid waste management for Metro Manila
would be considered instead.
JANCOM appealed to President Joseph Estrada the position taken by the
EXECOM not to pursue the BOT Contract executed and signed between
JANCOM and the Philippine Government, refuting the cited reasons for non-
implementation. Despite the pendency of the appeal, MMDA, on February 22,
2000, caused the publication in a newspaper of an invitation to pre-qualify and
to submit proposals for solid waste management projects for Metro
Manila. JANCOM thus filed with the Regional Trial Court of Pasig a petition
for certiorari to declare i) the resolution of the Greater Metropolitan Manila
Solid Waste Management Committee disregarding the BOT Contract and ii)
the acts of MMDA calling for bids and authorizing a new contract for Metro
Manila waste management, as illegal, unconstitutional, and void; and for
prohibition to enjoin the Greater Metropolitan Manila Solid Waste
Management Committee and MMDA from implementing the assailed
resolution and disregarding the Award to, and the BOT contract with,
JANCOM, and from making another award in its place. On May 29, 2000, the
trial court rendered a decision, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, the Court hereby renders judgment in favor
of petitioners JANCOM ENVIRONMENTAL CORPORATION, and JANCOM
INTERNATIONAL DEVELOPMENT PROJECTS PTY., LIMITED OF
AUSTRALIA, and against respondent GREATER METROPOLITAN MANILA
SOLID WASTE MANAGEMENT COMM., and HON. ROBERTO N.
AVENTAJADO, in his Capacity as Chairman of the said Committee, METRO
MANILA DEVELOPMENT AUTHORITY and HON. JEJOMAR C. BINAY, in his
capacity as Chairman of said Authority, declaring the Resolution of respondent
Greater Metropolitan Manila Solid Waste Management Committee disregarding
petitioners BOT Award Contract and calling for bids for and authorizing a new
contract for the Metro Manila waste management ILLEGAL and VOID.

Moreover, respondents and their agents are hereby PROHIBITED and ENJOINED
from implementing the aforesaid Resolution and disregarding petitioners BOT Award
Contract and from making another award in its place.

Let it be emphasized that this Court is not preventing or stopping the government
from implementing infrastructure projects as it is aware of the proscription under PD
1818. On the contrary, the Court is paving the way for the necessary and modern
solution to the perennial garbage problem that has been the major headache of the
government and in the process would serve to attract more investors in the country.

(Rollo,p. 159.)

Instead of appealing the decision, MMDA filed a special civil action

for certiorari with prayer for a temporary restraining order with the Court of
Appeals which was later docketed therein as CA-G.R. SP No. 59021. The
appellate court not only required JANCOM to comment on the petition, it also
granted MMDAs prayer for a temporary restraining order. During the
pendency of the petition for certiorari, JANCOM moved for the execution of
the RTC decision, which was opposed by MMDA. However, the RTC granted
the motion for execution on the ground that its decision had become final
since MMDA had not appealed the same to the Court of Appeals. MMDA
moved to declare respondents and the RTC judge in contempt of court,
alleging that the RTCs grant of execution was abuse of and interference with
judicial rules and processes.
On November 13, 2001, the Court of Appeals dismissed the petition in CA-
G.R. SP No. 59021 and a companion case, CA-G.R. SP No. 60303.
MMDAs motion for reconsideration of said decision having been denied,
MMDA filed the instant petition, alleging that the Court of Appeals gravely
erred in finding that:
1) There is a valid and binding contract between the Republic of the Philippines and
JANCOM given that: a) the contract does not bear the signature of the President of
the Philippines; b) the conditions precedent specified in the contract were not
complied with; and c) there was no valid notice of award.
2) The MMDA had not seasonably appealed the Decision of the lower court via a
petition for certiorari.

Before taking up the substantive issue in question, we shall first dispose of

the question as to whether it is fatal to petitioners cause, that rather than
appealing the trial courts decision to the Court of Appeals, it instead filed a
petition for certiorari. While petitioner claims that the trial courts decision never
became final by virtue of its having appealed by certiorari to the Court of
Appeals, the trial court ruled that petitioners failure to file an appeal has made
its decision final and executory. At bottom, the question involves a
determination of the propriety of petitioners choice of the remedy
of certiorari in questioning the decision of the trial court.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure 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.

The petition shall be accompanied by a certified true copy of the judgment, order, or
resolution subject thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping as provided in the
third paragraph of section 3, Rule 46.
 Plain it is from a reading of the above provision that certiorari will lie only
where a court has acted without or in excess of jurisdiction or with grave
abuse of discretion. If the court has jurisdiction over the subject matter and of
the person, its rulings upon all questions involved are within its jurisdiction,
however irregular or erroneous these may be, they cannot be corrected
by certiorari. Correction may be obtained only by an appeal from the final
decision.
Verily, Section 1, Rule 41 of the 1997 Rules of Civil Procedure provides:

SEC. 1. Subject of appeal. An appeal may be taken from a judgment or final order that
completely disposes of the case or of a particular matter therein when declared by
these Rules to be appealable.

xxx xxx xxx

In all the above instances where the judgment or final order is not appealable, the
aggrieved party may file an appropriate special civil action under Rule 65.

There can be no dispute that the trial courts May 29, 2000 decision was a
final order or judgment which MMDA should have appealed, had it been so
minded. In its decision, the trial court disposed of the main controversy by
declaring the Resolution of respondent Greater Metropolitan Manila Solid
Waste Management Committee disregarding petitioners BOT Award Contract
and calling for bids for and authorizing a new contract for the Metro Manila
waste management ILLEGAL and VOID. This ruling completely disposed of
the controversy between MMDA and JANCOM. In BA Finance Corporation vs.
CA (229 SCRA 5667 [1994]), we held that a final order or judgment is one
which disposes of the whole subject matter or terminates a particular
proceeding or action, leaving nothing to be done but to enforce by execution
what has been determined. An order or judgment is deemed final when it
finally disposes of the pending action so that nothing more can be done with it
in the trial court. In other words, a final order is that which gives an end to the
litigation. A final order or judgment finally disposes of, adjudicates, or
determines the rights, or some right or rights of the parties, either on the entire
controversy or on some definite and separate branch thereof, and concludes
them until it is reversed or set aside. Where no issue is left for future
consideration, except the fact of compliance or non-compliance with the terms
of the judgment or doer, such judgment or order is final and
appealable (Investments, Inc. vs. Court of Appeals, 147 SCRA 334 [1987]).
However, instead of appealing the decision, MMDA resorted to the
extraordinary remedy of certiorari, as a mode of obtaining reversal of the
judgment. This cannot be done. The judgment was not in any sense null and
void ab initio, incapable of producing any legal effects whatever, which could
be resisted at any time and in any court it was attempted. It was a judgment
which could or may have suffered from some substantial error in procedure or
in findings of fact or of law, and on that account, it could have been reversed
or modified on appeal. But since it was not appealed, it became final and has
thus gone beyond the reach of any court to modify in any substantive
aspect. The remedy to obtain reversal or modification of the judgment on the
merits is appeal. This is true even if the error, or one of the errors, ascribed to
the court rendering the judgment is its lack of jurisdiction over the subject
matter, or the exercise of power in excess thereof, or grave abuse of
discretion in the findings of fact or of law set out in the decision. The existence
and availability of the right of appeal proscribes a resort to certiorari, because
one of the requirements for availment of the latter remedy is precisely that
there should be no appeal (Mercado vs. CA, 162 SCRA 75 [1988]). As
incisively observed by the Court of Appeals:

The special civil action for certiorari is available only when there is no appeal nor any
plain, speedy and adequate remedy in the ordinary course of law (Sec. 1, rule 65, id.)

Admittedly, appeal could have been taken from the assailed RTC decision. However,
petitioners maintain that appeal is not a speedy remedy because the RTC decision
prohibiting them from conducting a bidding for a new waste disposal project has
adverse and serious effects on the citys garbage situation.

Nevertheless, the RTC decision is not immediately executory. Only judgments in

actions for injunction, receivership, accounting and support and such other judgments
as are now or may hereafter be declared to be immediately executory shall be
enforced after their rendition and shall not be stayed by an appeal therefrom, unless
otherwise ordered by the trial court (Sec. 4, rule 39, id.).

Since the RTC decision is not immediately executory, appeal would have stayed its
execution. Consequently, the adverse effects of said decision will not visit upon
petitioners during the appeal. In other words, appeal is a plain, speedy and adequate
remedy in the ordinary course of the law.

But as no appeal was taken within the reglementary period, the RTC decision had
become final and executory. Well-settled is the rule that the special civil action for
certiorari may not be invoked as a substitute for the remedy of appeal (BF Corporation
vs. Court of Appeals, 288 SCRA 267). Therefore, the extraordinary remedy of
certiorari does not lie.
Moreover, petitioners instituted the instant action without filing a motion for
reconsideration of the RTC decision. Doctrinal is the rule that certiorari will not lie
unless a motion for reconsideration is first filed before the respondent tribunal to
allow it an opportunity to correct its errors (Zapanta vs. NLRC, 292 SCRA 580).

(Rollo, p. 47-48.)

Admittedly, there are instances where the extraordinary remedy

of certiorari may be resorted to despite the availability of an appeal. In Ruiz,
Jr. vs. Court of Appeals (220 SCRA 490 [1993]), we held:

Considered extraordinary, [certiorari] is made available only when there is no appeal,

nor any plain, speedy or adequate remedy in the ordinary course of the law (Rule 65,
Rules of Court, Section 1). The long line of decisions denying the petition
for certiorari, either before appeal was availed or specially in instances where the
appeal period has lapsed, far outnumbers the instances when certiorari was given due
course. The few significant exceptions were: when public welfare and the
advancement of public policy dictate; or when the broader interests of justice so
require, or when the writs issued are null . . . or when the questioned order amounts
to an oppressive exercise of judicial authority.

In the instant case, however, MMDA has not sufficiently established the
existence of any fact or reason to justify its resort to the extraordinary remedy
of certiorari. Neither does the record show that the instant case, indeed, falls
under any of the exceptions aforementioned.
The Court thus holds that the Court of Appeals did not err in declaring that
the trial courts decision has become final due to the failure of MMDA to
perfect an appeal within the reglementary period.
With the foregoing disquisition, it would appear unnecessarily to discuss
and resolve the substantive issue posed before the Court. However, the
procedural flaw notwithstanding, the Court deems it judicious to take
cognizance of the substantive question, if only to put petitioners mind to rest.
In its second assignment of errors, petitioner MMDA contends that there is
no valid and binding contract between the Republic of the Philippines and
respondents because: a) the BOT contract does not bear the signature of the
President of the Philippines; b) the conditions precedent specified in the
contract were not complied with; and that c) there was no valid notice of
award.
These contentions hold no water.
 Under Article 1305 of the Civil Code, [a] contract is a meeting of minds
between two persons whereby one binds himself, with respect to the other, to
give something or to render some service. A contract undergoes three distinct
stages preparation or negotiation, its perfection, and finally, its
consummation. Negotiation begins from the time the prospective contracting
parties manifest their interest in the contract and ends at the moment of
agreement of the parties. The perfection or birth of the contract takes place
when the parties agree upon the essential elements of the contract. The last
stage is the consummation of the contract wherein the parties fulfill or perform
the terms agreed upon in the contract, culminating in the extinguishment
thereof (Bugatti vs. CA, 343 SCRA 335 [2000]). Article 1315 of the Civil Code,
provides that a contract is perfected by mere consent.Consent, on the other
hand, is manifested by the meeting of the offer and the acceptance upon the
thing and the cause which are to constitute the contract (See Article 1319,
Civil Code). In the case at bar, the signing and execution of the contract by
the parties clearly show that, as between the parties, there was a concurrence
of offer and acceptance with respect to the material details of the contract,
thereby giving rise to the perfection of the contract. The execution and signing
of the contract is not disputed by the parties. As the Court of Appeals aptly
held:

[C]ontrary to petitioners insistence that there was no perfected contract, the meeting
of the offer and acceptance upon the thing and the cause, which are to constitute the
contract (Arts. 1315 and 1319, New Civil Code), is borne out by the records.

Admittedly, when petitioners accepted private respondents bid proposal (offer), there
was, in effect, a meeting of the minds upon the object (waste management project)
and the cause (BOT scheme). Hence, the perfection of the contract. In City of Cebu vs.
Heirs of Candido Rubi (306 SCRA 108), the Supreme Court held that the effect of an
unqualified acceptance of the offer or proposal of the bidder is to perfect a contract,
upon notice of the award to the bidder.

(Rollo, p. 48-49.)

In fact, in asserting that there is no valid and binding contract between the
parties, MMDA can only allege that there was no valid notice of award; that
the contract does not bear the signature of the President of the Philippines;
and that the conditions precedent specified in the contract were not complied
with.
In asserting that the notice of award to JANCOM is not a proper notice of
award, MMDA points to the Implementing Rules and Regulations of Republic
Act No. 6957, otherwise known as the BOT Law, which require that i) prior to
the notice of award, an Investment Coordinating Committee clearance must
first be obtained; and ii) the notice of award indicate the time within which the
awardee shall submit the prescribed performance security, proof of
commitment of equity contributions and indications of financing resources.
Admittedly, the notice of award has not complied with these
requirements. However, the defect was cured by the subsequent execution of
the contract entered into and signed by authorized representatives of the
parties; hence, it may not be gainsaid that there is a perfected contract
existing between the parties giving to them certain rights and obligations
(conditions precedents) in accordance with the terms and conditions
thereof. We borrow the words of the Court of Appeals:

Petitioners belabor the point that there was no valid notice of award as to constitute
acceptance of private respondents offer. They maintain that former MMDA Chairman
Oretas letter to JANCOM EC dated February 27, 1997 cannot be considered as a valid
notice of award as it does not comply with the rules implementing Rep. Act No. 6957,
as amended. The argument is untenable.

The fact that Chairman Oretas letter informed JANCOM EC that it was the sole
complying (winning) bidder for the San Mateo project leads to no other conclusion
than that the project was being awarded to it. But assuming that said notice of award
did not comply with the legal requirements, private respondents cannot be faulted
therefore as it was the government representatives duty to issue the proper
notice.

In any event, petitioners, as successors of those who previously acted for the
government (Chairman Oreta, et al), are estopped from assailing the validity of the
notice of award issued by the latter. As private respondents correctly observed, in
negotiating on the terms and conditions of the BOT contract and eventually signing
said contract, the government had led private respondents to believe that the notice of
award given to them satisfied all the requirement of the law.

While the government cannot be estopped by the erroneous acts of its agents,
nevertheless, petitioners may not now assail the validity of the subject notice of award
to the prejudice of private respondents. Until the institution of the original action
before the RTC, invalidity of the notice of award was never invoked as a ground for
termination of the BOT contract. In fact, the reasons cited for terminating the San
Mateo project, per Chairman Aventajados letter to JANCOM EC dated November 4,
1999, were its purported non-implementability and non-viability on account of
supervening events, e.g., passage of the Clean Air Act, etc.
 (Rollo, p. 49-50.)

MMDA also points to the absence of the Presidents signature as proof that
the same has not yet been perfected. Not only that, the authority of the
signatories to bind the Republic has even been put to question. Firstly, it is
pointed out that Memorandum Order No. 202 creating the Executive
Committee to oversee the BOT implementation of solid waste management
projects only charged the officials thereof with the duty of recommending to
the President the specific project to be implemented under the BOT scheme
for both San Mateo and Carmona sites. Hence, it is concluded that the
signatories, CORD-NCR Chairman Dionisio dela Serna and MMDA Chairman
Prospero Oreta, had no authority to enter into any waste management project
for and in behalf of the Government. Secondly, Section 59 of Executive Order
No. 292 is relied upon as authority for the proposition that presidential
approval is necessary for the validity of the contract.
The first argument conveniently overlooks the fact that then Secretary of
Environment and Natural Resources Victor Ramos was likewise a signatory to
the contract. While dela Serna and Oreta may not have had any authority to
sign, the Secretary of Environment and Natural Resources has such an
authority. In fact, the authority of the signatories to the contract was not
denied by the Solicitor General. Moreover, as observed by the Court of
Appeals, [i]t was not alleged, much less shown, that those who signed in
behalf of the Republic had acted beyond the scope of their authority.
In truth, the argument raised by MMDA does not focus on the lack of
authority of the signatories, but on the amount involved as placing the contract
beyond the authority of the signatories to approve. Section 59 of Executive
Order No. 292 reads:

Section 59. Contracts for Approval by the President. Contracts for infrastructure
projects, including contracts for the supply of materials and equipment to be used in
said projects, which involve amounts above the ceilings provided in the preceding
section shall be approved by the President: Provided, That the President may, when
conditions so warrant, and upon recommendation of the National Economic and
Development Authority, revise the aforesaid ceilings of approving authority.

However, the Court of Appeals trenchantly observed in this connection:

As regards the Presidents approval of infrastructure projects required under Section

59 of Executive Order No. 292, said section does not apply to the BOT contract in
question. Sec. 59 should be correlated with Sec. 58 of Exec. Order No. 292. Said
sections read:
SECTION 58. Ceiling for Infrastructure Contracts. The following shall be the ceilings
for all civil works, construction and other contracts for infrastructure projects,
including supply contracts for said projects, awarded through public bidding or
through negotiation, which may be approved by the Secretaries of Public Works and
Highways, Transportation and Communications, Local Government with respect to
Rural Road improvement Project and governing boards of government-owned or
controlled corporations:

xxx xxx xxx

Save as provided for above, the approval ceilings assigned to the

departments/agencies involved in national infrastructure and construction projects
shall remain at the levels provided in existing laws, rules and regulations.

Contrary to petitioners claim that all infrastructure contracts require the Presidents
approval (Petition, p. 16), Sec. 59 provides that such approval is required only in
infrastructure contracts involving amounts exceeding the ceilings set in Sec.
58. Significantly, the infrastructure contracts treated in Sec. 58 pertain only to those
which may be approved by the Secretaries of Public Works and Highways,
Transportation and Communications, Local Government (with respect to Rural Road
Improvement Project) and the governing boards of certain government-owned or
controlled corporations. Consequently, the BOT contract in question, which was
approved by the DENR Secretary and the EXCOM Chairman and Co-Chairman, is
not covered by Exec. Order No. 292.

(Rollo, p. 51-52.)

The provision pertinent to the authority of the Secretary of Environment

and Natural Resources would actually be Section 1 of Executive Order No.
380, Series of 1989 which provides that The Secretaries of all Departments
and Governing Boards of government-owned or controlled corporations
[except the Secretaries of Public Works and Highways, Transportation and
Communication, and Local Government with respect to Rural Road
Improvement projects] can enter into publicly bidded contracts regardless
of amount (See also Section 515, Government Accounting and Auditing
Manual Volume I). Consequently, MMDA may not claim that the BOT contract
is not valid and binding due to the lack of presidential approval.
Significantly, the contract itself provides that the signature of the President
is necessary only for its effectivity (not perfection), pursuant to Article 19 of the
contract, which reads:
This contract shall become effective upon approval by the President of the Republic
of the Philippines pursuant to existing laws subject to the condition, precedent in
Article 18. This contract shall remain in full force and effect for twenty-five
(25) years subject to renewal for another twenty-five (25) years from the date of
Effectivity. Such renewal will be subject to mutual agreement of the parties and
approval of the President of the Republic of the Philippines.

(Rollo, p. 94.)

Stated differently, while the twenty-five year effectivity period of the

contract has not yet started to run because of the absence of the Presidents
signature, the contract has, nonetheless, already been perfected.
As to the contention that there is no perfected contract due to JANCOMs
failure to comply with several conditions precedent, the same is, likewise,
unmeritorious. Article 18 of the BOT contract reads:

ARTICLE 18

CONDITIONS PRECEDENT

xxx
18.2.1. The BOT COMPANY hereby undertakes to provide the following within 2
months from execution of this Contract as an effective document:
a) sufficient proof of the actual equity contributions from the proposed shareholders of
the BOT COMPANY in a total amount not less than PHP500,000,000 in accordance
with the BOT Law and the implementing rules and regulations;
b) sufficient proof of financial commitment from a lending institution sufficient to cover
total project cost in accordance with the BOT Law and the implementing rules and
regulations;
c) to support its obligation under this Contract, the BOT COMPANY shall submit a
security bond to the CLIENT in accordance with the form and amount required
under the BOT Law.

xxx
18.2.3 Completion of Documentary Requirements as per Schedule 4 by the BOT
Company

As clearly stated in Article 18, JANCOM undertook to comply with the

stated conditions within 2 months from execution of the Contract as an
effective document. Since the President of the Philippines has not yet affixed
his signature on the contract, the same has not yet become an effective
document. Thus, the two-month period within which JANCOM should comply
with the conditions has not yet started to run. It cannot thus be said that
JANCOM has already failed to comply with the conditions precedent
mandated by the contract. By arguing that failure [of JANCOM] to comply with
the conditions results in the failure of a contract or prevents the judicial
relation from coming into existence, MMDA reads into the contract something
which is not contemplated by the parties. If the terms of a contract are clear
and leave no doubt upon the intention of the contracting parties, the literal
meaning of its stipulations shall control (Art. 1370, Civil Code).
We, therefore, hold that the Court of Appeals did not err when it declared
the existence of a valid and perfected contract between the Republic of
the Philippines and JANCOM. There being a perfected contract, MMDA
cannot revoke or renounce the same without the consent of the other. From
the moment of perfection, the parties are bound not only to the fulfillment of
what has been expressly stipulated but also to all the consequences which,
according to their nature, may be in keeping with good faith, usage, and law
(Article 1315, Civil Code). The contract has the force of law between the
parties and they are expected to abide in good faith by their respective
contractual commitments, not weasel out of them. Just as nobody can be
forced to enter into a contract, in the same manner, once a contract is entered
into, no party can renounce it unilaterally or without the consent of the other. It
is a general principle of law that no one may be permitted to change his mind
or disavow and go back upon his own acts, or to proceed contrary thereto, to
the prejudice of the other party. Nonetheless, it has to be repeated that
although the contract is a perfected one, it is still ineffective or
unimplementable until and unless it is approved by the President.
Moreover, if after a perfected and binding contract has been executed
between the parties, it occurs to one of them to allege some defect therein as
reason for annulling it, the alleged defect must be conclusively proven, since
the validity and the fulfillment of contracts cannot be left to the will of one of
the contracting parties. In the case at bar, the reasons cited by MMDA for not
pushing through with the subject contract were: 1) the passage of the Clean
Air Act, which allegedly bans incineration; 2) the closure of the San
Mateo landfill site; and 3) the costly tipping fee. These reasons are bereft of
merit
Once again, we make reference to the insightful declarations of the Court
of Appeals:

Sec. 20 of the Clean Air Act pertinently reads:

SECTION 20. Ban on Incineration. Incineration, hereby defined as the burning of
municipal, bio-chemical and hazardous wastes, which process emits poisonous and
toxic fumes, is hereby prohibited: x x x.

Section 20 does not absolutely prohibit incineration as a mode of waste disposal;

rather only those burning processes which emit poisonous and toxic fumes are
banned.

As regards the projected closure of the San Mateo landfill vis--vis the
implementability of the contract, Art. 2.3 thereof expressly states that [i]n the event
the project Site is not delivered x x x, the Presidential task Force on Solid Waste
Management (PTFSWM) and the Client, shall provide within a reasonable period of
time, a suitable alternative acceptable to the BOT COMPANY.

With respect to the alleged financial non-viability of the project because the MMDA
and the local government units cannot afford the tipping fees under the contract, this
circumstance cannot, by itself, abrogate the entire agreement.

Doctrinal is the rule that neither the law nor the courts will extricate a party from an
unwise or undesirable contract, or stipulation for that matter, he or she entered into
with full awareness of its consequences (Opulencia vs. CA, 293 SCRA 385). Indeed,
the terms and conditions of the subject contract were arrived at after due negotiations
between the parties thereto.

(Rollo, p. 54.)

WHEREFORE, premises considered, the petition is hereby DISMISSED

for lack of merit and the decision of the Court of Appeals in CA-G.R. SP No.
59021 dated November 13, 2001 AFFIRMED. No costs.
SO ORDERED.
Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
Carpio, J., no part. I was former counsel to a foreign partner of Jancom
Environmental Corporation.
 [G.R. No. L-41958. July 20, 1982.]

DONALD MEAD, petitioner, vs. HON. MANUEL A. ARGEL in his

capacity as Presiding Judge in the Court of First Instance of
Rizal, Branch XXXV and the PEOPLE OF THE
PHILIPPINES, respondents.

Ozaeta, Romulo, De Leon & Reyes & Associates for petitioner.

Solicitor General Estelito P. Mendoza, Acting Solicitor General Hugo Gutierrez,
Jr., Asst. Solicitor General Octavio R. Ramirez andSolicitor Mariano M.
Martinez for respondents.

SYNOPSIS

Petitioner and Isaac Arivas, President and General Manager, respectively, of the
Insular Oil Refinery Co., were charged by the Provincial Fiscal of Rizal before
respondent court with violation of Republic Act No. 3931 prohibiting the pollution
of waterway due to the discharge of industrial and waste matters from the
operation of said refinery. Petitioner filed a motion to quash the information on
the ground that the trial court has no jurisdiction and that the Provincial Fiscal
has no legal personality to file said information but said motion was denied.
Petitioner's motion for reconsideration having been denied, he filed the instant
petition with the Supreme Court seeking to annul the orders of the respondent
judge.
The Supreme Court held that the filing of the information in question by the
Provincial Fiscal is premature and unauthorized, there being no prior finding or
determination by the National Water and Air Pollution Control Commission that
the act of the petitioner had caused pollution of the waterway and, therefore, the
respondent judge is without jurisdiction to take cognizance of the offense
Questioned orders annulled and set aside.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH; DENIAL;

RECOURSE TO EXTRAORDINARY LEGAL REMEDIES CONSIDERED
PROPER IN CERTAIN SITUATIONS; CASE AT BAR. While there is no
disputing the validity and wisdom of the rule that when a motion to quash filed by
an accused in a criminal case shall be denied, the remedy of the accused
movant is not to file a petition for certiorari or mandamus or prohibition, it is also
recognized that, under certain situations, recourse to the said extraordinary legal
remedies to question the denial of a motion to quash is considered proper in the
interest of "more enlightened and substantial justice," as was so declared in
"Yap vs. Lutero" G.R. No. L-12669, April 30, 1959, 105 Phil. 3007, where the
motion to quash filed by the accused was on the ground of double jeopardy and
in "Pineda and Ampil Manufacturing Co. vs. Bartolome et al." 95 Phil. 930938
where the ground invoked was duplicity of offenses charged in the information. In
the case at bar, as the petitioner assails the very jurisdiction of the court wherein
the criminal case was filed, there is a more compelling reason that such issue be
resolved soonest, in order to avoid the court's spending precious time and energy
unnecessarily in trying and deciding the case, and to spare the accused from the
inconvenience, anxiety and embarrassment, let alone the expenditure of effort
and money, in undergoing trial for a case the proceedings in which could possibly
be annulled for want of jurisdiction.
2. ID.; CIVIL PROCEDURES; MOTION TO DISMISS ON GROUND OF LACK
OF JURISDICTION; DUTY OF THE COURT TO RESOLVE THE SAME AS
SOON AS POSSIBLE. Even in civil actions, when the court's jurisdiction is
attacked in a motion to dismiss, it is the duty of the court to resolve the same as
soon as possible in order to avoid unwholesome consequences.
3. STATUTORY CONSTRUCTION; REPUBLIC ACT NO. 3931; LEGISLATIVE
INTENT DETERMINED FROM THE CONTEXT OF THE STATUTE; NATIONAL
WATER AND AIR POLLUTION COMMISSION, CLEARLY VESTED WITH
EXCLUSIVE AUTHORITY TO PROSECUTE VIOLATION THEREOF. The
clear legislative intention in Republic Act No. 3931 is to vest the Commission the
exclusive authority to determine the existence of "pollution" penalized thereunder
and to prosecute violations of said law. The last paragraph of Sec. 8 of said law
delineates the authority to be exercised by the Commission and by the ordinary
courts in respect of preventing or remedying the pollution of the waters or
atmospheric air of the Philippines.
4. ID.; ID.; ID.; ID.; FILING OF COURT ACTION BEFORE DETERMINATION BY
THE COMMISSION OF VIOLATION THEREOF; PREMATURE; CASE AT BAR.
Under Section 8 of Republic Act No. 3931, it is expressly directed that on
matters not related to nuisance "no court action shall be initiated until the
Commission shall have finally ruled thereon." This provision leaves little room for
doubt that a court action involving the determination of the existence of pollution
may not be initiated until and unless the Commission has so determined the
existence of what in the law is considered pollution. Hence; in the case at bar,
the Provincial Fiscal of Rizal lacked the authority to file the information charging
the Petitioner with a violation of the provision of Republic Act No. 3931 there
being no prior finding or determination by the Commission that the act of the
petitioner had caused pollution in any water or atmospheric air of the Philippines.
The filing of the information for the violation of Section 9 of the law is, therefore,
premature and unauthorized. Concommittantly, the respondent Judge is without
jurisdiction to take cognizance of the offense charge therein.
5. ID.; ID.; ID.; ID.; NO BASIS FOR ALLEGED DISTINCTION IN THE NATURE
OF CASES FILED, EVEN UPON CONSIDERATION OF THE PURPOSE OF
THE LAW. It may not be argued that the above-cited provision refers only to
the filing of civil actions, and not to criminal cases as is the one herein involved,
there being no basis either in the context in law nor from a consideration of the
purpose behind the enactment of the same upon which such a distinction may be
made.
6. ID.; ID.; ID,; ID.; ABSENCE OF EXPLICIT DECLARATION IMMATERIAL
WHEN LEGISLATIVE INTENT IS CLEAR FROM THE PROVISIONS AND THE
PHILOSOPHY OF THE LAW. The absence of an explicit declaration as to the
exclusive authority of the Commission to prosecute violations of the subject law
does not detract from the clear intention to make it so, as gathered from the
philosophy of the law itself and as gleaned from several provisions of the same. It
is clearly deductible from the provision of Section 8 expressly declaring that no
court action shall be initiated, except those related to nuisance, until the
Commission shall have finally ruled on the alleged act of pollution; and also from
Section 6(a), No. 5, which authorizes the Commission to "initiate or cause to be
instituted in a court of competent jurisdiction legal proceedings to compel
compliance with the provisions of this Act."
7. ID.; ID.; ID.; ID.; VESTING OF AUTHORITY DEDUCED FROM THE
SPECIALIZED KNOWLEDGE REQUIRED OF THE COMMISSION AS
PROVIDED FOR IN THE LAW. As may be seen from the law, the
determination of the existence of pollution requires investigation, public hearings
and the collection of various information relating to water and atmospheric
pollution. (Sections 6,7, and 8.) The definition of the term "pollution" in itself
connotes that the determination of its existence requires specialized knowledge
of technical and scientific matters which are not ordinarily within the competence
of Fiscals or of those sitting in a court of justice. It is undoubtedly in recognition of
this fact that in Section 4 of the law, it is provided that "the basic personnel
necessary to carry out the provisions of this Act shall be engineers, chemists,
bio-chemists, physicists, and other technicians"; and required in Section 3 that
the Chairman of the Commission shall be the Chairman of the National Science
Development Board, one of the part-time commissioners shall be a
recommendee of the Philippine Council of Science and Technology, and one of
the full time commissioner shall be a sanitary engineer.
8. ID.; ID.; ID.; ID.; VESTING OF AUTHORITY IN AN ADMINISTRATIVE BODY
TO DETERMINE WHEN TO INSTITUTE A CRIMINAL ACTION, NOT NEW IN
THIS JURISDICTION. The vesting of authority in an administrative body to
determine when to institute a criminal action for a violation of the law entrusted to
it for administration or enforcement to the exclusion of the regular prosecution
service of the government, is not new in this jurisdiction. It is recognized in Yao
Lit vs. Geraldez, et al., 106 Phil. 545 which upheld the exclusive authority of the
Commissioner of Immigration to investigate and impose administrative fines upon
violators of the provisions ofRepublic Act No. 751 for the reason that said official
"has better facilities than the prosecuting officials to carry out the provisions of
the said Act, the former official being the keeper of the records pertaining to
aliens." The same principle has been recognized with respect to the prosecutions
of violations of the Anti-Dummy Law (Republic Act No. 1131) and R. B. Industrial
Development Co., Ltd. vs. Enage (24 SCRA 365) involving the authority of the
Bureau of Forestry over the management and use of public forests and the
transfer of licenses for the taking of forest products.

DECISION

VASQUEZ, J : p

The issue posed for determination in this case is whether or not a Provincial
Fiscal has the authority to file an information for a violation of Republic Act No.
3931, entitled "An Act Creating a National Water and Air Pollution Control
Commission."
On March 11, 1975, petitioner Donald Mead and a certain Isaac Arivas were
charged by the Provincial Fiscal of Rizal with a violation of Section 9, in relation
to Section 10 of Republic Act No. 3931, under an information reading as follows:
"That on or about the 23rd day of August, 1972, and for some time prior
and subsequent thereto, in the municipality of Malabon, province of
Rizal, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, being then the president and the general
manager, respectively, of the Insular Oil Refinery Co. (INSOIL), a
corporation duly organized in accordance with existing laws, conspiring
and confederating together and mutually helping and aiding one another,
did then and there willfully, unlawfully and feloniously drain or otherwise
dispose into the highway canal and/or cause, permit, suffer to be drained
or allow to seep into such waterway the industrial and other waste
matters discharged due to the operation of the said Insular Oil Refinery
Co. so managed and operated by them, thereby causing pollution of
such waterway with the resulting damage and/or destruction to the living
plants in the vicinity and providing hazard to health and property in the
same vicinity."
The case was docketed as Criminal Case No. C-5984-75 and it was
subsequently assigned to Branch XXXV of the Court of First Instance of Rizal
(Caloocan City) presided over by the respondent Judge.
On August 11, 1975, petitioner Donald Mead, one of the accused in the criminal;
case, filed a motion to quash on the grounds that the trial court has no jurisdiction
and that the Provincial Fiscal of Rizal has no legal personality to file the above-
quoted information. The motion to quash was denied by the respondent Judge in
an Order dated September 5, 1975. A Motion For Reconsideration filed by the
petitioner was also denied by the respondent Judge in his Order of November 10,
1965. Hence, this petition for certiorari with preliminary injunction to annul the
said orders of the respondent Judge who allegedly acted in excess of or without
jurisdiction in issuing the same.
In Our Resolution dated November 28, 1975, the respondents were required to
comment on the petition and a temporary restraining order was issued to enjoin
the respondent Judge from enforcing his questioned orders until otherwise
directed by this Court.cdrep

It is the principal contention of the petitioner that the National Water and Air
Pollution Control Commission (hereinafter referred to as the "Commission") as
created under Republic Act No. 3931 has the exclusive authority to determine the
existence of "pollution" before a criminal case can be filed for a violation of the
said law; and that it has the exclusive authority to prosecute violations of the
same. Petitioner further avers that the Commission not having finally ruled that
the petitioner has violated Republic Act No. 3931, the Provincial Fiscal of Rizal
lacks the authority to prosecute the petitioner for a violation of said law.
The respondents, on the other hand, maintain that while Republic Act No.
3931 grants the power and duty to the Commission to investigate and prosecute
violations of Republic Act No. 3931, such grant of power and authority is not
exclusive, and does not deprive fiscals and other public prosecutors of their
authority to investigate and prosecute violations of the said law committed within
their respective jurisdictions.
Before discussing the main issue on its merits, We deem it necessary to resolve
a procedural question raised by the respondents in support of their prayer that
the instant petition should not be entertained. Respondents advert to the rule that
when a motion to quash filed by an accused in a criminal case shall be denied,
the remedy of the accused-movant is not to file a petition for certiorari or
mandamus or prohibition, the proper recourse being to go to trial, without
prejudice to his right to reiterate the grounds invoked in his motion to quash if an
adverse judgment is rendered against him, in the appeal that he may take
therefrom in the manner authorized by law. (Mill vs. People, et al. 101 Phil.
599; Echarol vs. Purisima, et al., 13 SCRA 309.)
There is no disputing the validity and wisdom of the rule invoked by the
respondents. However, it is also recognized that, under certain situations,
recourse to the extraordinary legal remedies of certiorari, prohibition or
mandamus to question the denial of a motion to quash is considered proper in
the interest of "more enlightened and substantial justice", as was so declared in
"Yap vs. Lutero", G.R. No. L-12669, April 30, 1969, 105 Phil. 3007:
"However, were we to require adherence to this pretense, the case at
bar would have to be dismissed and petitioner required to go through the
inconvenience, not to say the mental agony and torture, of submitting
himself to trial on the merits in Case No. 16443, apart from the expenses
incidental thereto, despite the fact that his trial and conviction therein
would violate one of this constitutional rights, and that, an appeal to this
Court, we would, therefore, have to set aside the judgment of conviction
of the lower court. This would, obviously, be most unfair and unjust.
Under the circumstances obtaining in the present case, the flaw in the
procedure followed by petitioner herein may be overlooked, in the
interest of a more enlightened and substantial justice."
To the same effect is the pronouncement in "Pineda and Ampil Manufacturing
Co., vs. Bartolome, et al." 95 Phil., 930-938, expressed as follows:
"While a denial of a motion to dismiss for lack of jurisdiction was held not
to be a proper basis for a petition for certiorari [Nico vs. Blanco, 46 Off
Gaz., Supp. (1) 88; 81 Phil., 213], or an appeal not certiorari is the
proper remedy for correcting an error which a lower court may commit in
denying a motion to set aside a judgment, or in setting aside an order of
dismissal, [Rios vs. Ros, et al., 45 Off. Gaz. (No. 3), 1265; 79 Phil. 243;
Santos vs. Pecson, 45 Off. Gaz. (No. 3), 1278; 79 Phil. 754] however, in
some instances, the Supreme Court has departed from the general rule
and has entertained the writ notwithstanding the existence of an appeal.
Thus, in one case the Supreme Court took cognizance of a petition for
certiorari notwithstanding the fact that the accused could have appealed
in due time when it found that the action was necessary to promote
public welfare and public policy (People vs. Zulueta, 89 Phil. 880). In
another case, a petition for certiorari to annul an order of the trial judge
admitting an amended information was entertained although the accused
had an adequate remedy by appeal 'inasmuch as the Surplus Property
cases have attracted nationwide attention, making it essential to proceed
with dispatch in the consideration thereof.' (People vs. Zulueta, supra.
Citing Arevalo vs. Nepomuceno, 63 Phil., 627.) And still in another case,
the writ was entertained where the appeal was found not to be adequate
remedy, as where the order which is sought to be reviewed is merely of
interlocutory or peremptory character, and the appeal therefrom can be
 interposed only after final judgment and may therefore be of no avail.
(Rocha vs. Crossfield, 6 Phil., 355; Leung Ben vs. O'Brien, 38 Phil., 182.
See also Mendoza vs. Parugao, 49 Phil., 271; Dais vs. Court of First
Instance, 51 Phil., 36).LibLex

For analogous reasons it may be said that the petition for certiorari
interposed by the accused against the order of the court a quo denying
the motion to quash may be entertained, not only because it was
rendered in a criminal case, but because it was rendered, as claimed,
with grave abuse of discretion, as found by the Court of Appeals. It
would be indeed unfair and unjust, if not derogatory of their constitutional
right, to force the accused to go to trial under an information which, in
their opinion, as was found, accuses them of multiple offenses in
contravention of law. And so, in our opinion, the respondent court did not
err in entertaining the petition for certiorari instead of dismissing it, as
claimed.
The motion to quash filed by the accused in Yap vs. Lutero was on the ground of
double jeopardy. In Pineda vs. Bartolome, the ground invoked was duplicity of
offenses charged in the information. In the case at bar, the petitioner assails the
very jurisdiction of the court wherein the criminal case was filed. Certainly, there
is a more compelling reason that such issue be resolved soonest, in order to
avoid the court's spending precious time and energy unnecessarily in trying and
deciding the case, and to spare the accused from the inconvenience, anxiety and
embarrassment, let alone the expenditure of effort and money, in undergoing trial
for a case the proceedings in which could possibly be annulled for want of
jurisdiction. Even in civil actions, We have counselled that when the court's
jurisdiction is attacked in a motion to dismiss, it is the duty of the court to resolve
the same as soon as possible in order to avoid the unwholesome consequences
mentioned above. cdll

"It is also advanced that the present petition is premature, since

respondent court has not definitely ruled on the motion to dismiss, nor
held that it has jurisdiction, but only argument is untenable. The motion
to dismiss was predicated on the respondent court's lack of jurisdiction
to entertain the action, and the rulings of this Court are that writs of
certiorari or prohibition, or both, may issue in case of a denial or
deferment of action on such a motion to dismiss for lack of jurisdiction.
'If the question of jurisdiction were not the main ground for this petition
for review by certiorari, it would be premature because it seeks to have a
review of an interlocutory order. But as it would be useless and futile to
go ahead with the proceedings if the court below had no jurisdiction this
petition was given due course.'(San Beda vs. CIR, 51 O.G. 5636, 5638).
'While it is true that action on a motion to dismiss may be deferred until
the trial and an order to that effect is interlocutory, still where it clearly
appears that the trial judge or court is proceeding in excess or outside of
 its jurisdiction, the remedy of prohibition would lie since it would be
useless and a waste of time to go ahead with the proceedings.
(Philippine International Fair, Inc., et al.vs. Ibaez, et al., 50 Off. Gaz.
1036; Enrique vs. Macadaeg et al., 47 Off. Gaz. 1207; see also San
Beda College vs. CIR, 51 Off. Gaz. 5636.) (University of Sto. Tomas vs.
Villanueva, L-13748, 30 October 1959.)' " (Time, Inc. vs. Reyes,
39 SCRA, pp. 315-316.)
An additional factor that induced Us to entertain the instant petition is the obvious
merit We find in the same. Our reading of the provisions of Republic Act No.
3931 has convinced Us that the clear legislative intention is to vest in the
Commission the exclusive authority to determine the existence of "pollution"
penalized thereunder and to prosecute violations of said law.
The information filed against the herein petitioner charges him with a violation of
Section 9, in relation to Section 10 of Republic Act No. 3931. More specifically, it
alleges that the petitioner, with his co-accused Isaac Arivas, "willfully, unlawfully
and feloniously drain or otherwise dispose into the highway canal and/or cause,
permit, suffer to be drained or allow to seep into such waterway the industrial and
other waste matters discharged due to the operation of the said Insular Oil
Refinery Co. so managed and operated by them,thereby causing pollution of
such waterway with the resulting damage and/or destruction to the living plants in
the vicinity and providing hazard to health and property in the same vicinity."

Section 9 in its first paragraph, supposedly the criminal act being imputed to the
petitioner, reads as follows:
"SEC. 9. Prohibitions. No person shall throw, run, drain, or otherwise
dispose into any of the water and/or atmospheric air of the Philippines,
or cause, permit, suffer to be thrown, run, drain, allow to see or
otherwise dispose into such waters or atmospheric air, any organic or
inorganic matter or any substance in gaseous or liquid form that shall
cause pollution of such waters or atmospheric air."
It will be noted from the above-quoted provision that the prohibited act is to
throw, run, drain or otherwise dispose into any of the water and/or atmospheric
air of the Philippines, any organic or inorganic matter or substance "that shall
cause pollution of such waters or atmospheric air." Stated in simpler terms, the
offense allegedly committed by the petitioner was the act of causing pollution of a
waterway (highway canal). Cdpr

The term "pollution" as used in the law is not to be taken in its ordinary
signification. In Section 2, paragraph (a), of Republic Act No. 3931, "pollution" is
defined in these words:
 "(a) 'Pollution' means such alteration of the physical, chemical and/or
biological properties of any water and/or atmospheric air of the
Philippines, or any such discharge of any liquid, gaseous or solid
substance into any of the waters and/or atmospheric air of the country as
will or is likely to create or render such waters and/or atmospheric air
harmful or detrimental or injurious to public health, safety or welfare, or
to domestic, commercial, industrial, agricultural, recreational or other
legitimate uses, or to livestock, wild animals, birds, fish or other aquatic
life."
The power to determine the existence of pollution is vested by the law in the
Commission. Section 6, among others, gives the Commission the authority to
"determine whether a pollution exists in any of the waters and/or atmospheric air
of the Philippines." (Section 6(a), No. 1); to "hold public hearings, . . . make
findings of facts and determinations all with respect to the violations of this Act or
orders issued by the Commission." (Ibid., No. 3); to "institute or cause to be
instituted in the court of competent jurisdiction legal proceedings to compel
compliance with the provisions of this Act" (Ibid., No. 5); and, "after due notice
and hearing, revoke, suspend or modify any permit issued under this Act
whenever modifications are necessary to prevent or abate pollution of any water
and/or atmospheric air of the Philippines." (Ibid., No. 7.) Section 8 contains
explicit provisions as to the authority of the Commission to determine the
existence of pollution and to take appropriate court actions to abate or prevent
the same. It provides:
"SEC. 8. Proceedings before the Commission. The Commission may,
on its own motion, or upon the request of any person, investigate or may
inquire, in a manner to be determined by it, as to any alleged act of
pollution or the omission or failure to comply with any provisions of this
Act or any order of this Commission.
Whenever it appears to the Commission, after investigation, that there
has been a violation of any of the provisions of this Act or any order of
the Commission, it may order whoever causes such violation to show
cause before said Commission why such discharge of industrial wastes
or any waste should not be discontinued. A notice shall be served on the
offending party directing him or it to show cause before the Commission,
on a date specified in such notice, why an order should not be made
directing the discontinuance of such violation. Such notice shall specify
the time and the place where a public hearing will be held by the
Commission or its authorized representatives, and notice of such
hearing shall be served personally or by registered mail, at least ten
days before said hearing; and in the case of a municipality or corporation
such notice shall be served upon the major or president thereof. The
Commission shall take evidence with reference to said matter and may
issue an order to the party responsible for such violation, directing that
within a specified period of time thereafter, such violation be
 discontinued unless adequate sewage works or industrial wastes
disposal system be properly operated to prevent further damage or
pollution.
cdll

No investigation being conducted or ruling made by the Commission

shall prejudice any action which may be filed in court by any person in
accordance with the provisions of the New Civil Code on nuisance. On
matters, however, not related to nuisance, no court action shall be
initiated until the Commission shall have finally ruled thereon and no
order of the Commission discontinuing the discharge of waste shall be
stayed by the filing of said court action, unless the court issues an
injunction as provided for in the Rules of Court."
The last paragraph of the above-quoted provision delineates the authority to be
exercised by the Commission and by the ordinary courts in respect of preventing
or remedying the pollution of the waters or atmospheric air of the Philippines. The
provision excludes from the authority of the Commission only the determination
of and the filing of court actions involving violations of the New Civil Code on
nuisance. It is expressly directed that on matters not related to nuisance "no
court action shall be initiated until the Commission shall have finally ruled
thereon." This provision leaves little room for doubt that a court action involving
the determination of the existence of pollution may not be initiated until and
unless the Commission has so determined the existence of what in the law is
considered pollution.
It may not be argued that the above-cited provision refers only to the filing of civil
actions, and not to criminal cases as is the one herein involved, there being no
basis either in the context in law nor from a consideration of the purpose behind
the enactment of the same upon which such a distinction may be made. Indeed,
respondents do not seriously question that the court action contemplated in the
last paragraph of Section 8 includes criminal proceedings. Respondents merely
aver that the aforementioned grant of authority to the Commission is not
exclusive of the power of Fiscals to file criminal actions for a violation of the
provisions of Republic Act No. 3931.
We are likewise not in accord with the view that the law intended to give
concurrent authority to the Commission and Fiscals to prosecute violations
of Republic Act No. 3931. It is true that there is no provision expressly declaring
that the. authority vested in the Commission to prosecute violations of Republic
Act No. 3931 is exclusive. Using the same logic, there is neither a provision
declaring such authority to be concurrent or may be exercised jointly with Fiscals.
The absence of an explicit declaration as to the exclusive authority of the
Commission to prosecute violations of the subject law does not detract from the
clear intention to make it so, as gathered from the philosophy of the law itself and
as gleaned from several provisions of the same. It is clearly deducible from the
provision of Section 8 expressly declaring that no court action shall be initiated,
except those related to nuisance, until the Commission shall have finally ruled on
the alleged act of pollution; and also from Section 6(a), No. 5, which authorizes
the Commission to "initiate or cause to be instituted in a court of competent
jurisdiction legal proceedings to compel compliance with the provision of this
Act."
As may be seen from the law, the determination of the existence of pollution
requires investigation, public hearings and the collection of various information
relating to water and atmospheric pollution, (Sections 6, 7, and 8.) The definition
of the term "pollution" in itself connotes that the determination of its existence
requires specialized knowledge of technical and scientific matters which are not
ordinarily within the competence of Fiscals or of those sitting in a court of justice.
It is undoubtedly in recognition of this fact that in Section 4 of the law, it is
provided that "the basic personnel necessary to carry out the provisions of this
Act shall be engineers, chemists, biochemists, physicists, and other technicians";
and required in Section 3 that the Chairman of the Commission shall be the
Chairman of the National Science Development Board, one of the part-time
commissioners shall be a recommendee of the Philippine Council of Science and
Technology, and one of the two full-time commissioner shall be a sanitary
engineer. prLL

The vesting of authority in an administrative body to determine when to institute a

criminal action for a violation of the law entrusted to it for administration or
enforcement, to the exclusion of the regular prosecution service of the
government, is not new in this jurisdiction. It is recognized in Yao Lit vs.
Geraldez, et al., 106 Phil. 545 which upheld the exclusive authority of the
Commissioner of Immigration to investigate and impose administrative fines upon
violators of the provisions of Republic Act No. 751 for the reason that said official
"has better facilities than the prosecuting officials to carry out the provisions of
the said Act, the former official being the keeper of the records pertaining to
aliens." The same principle has been recognized with respect to the prosecutions
of violations of the Anti-Dummy Law (Republic Act No. 1131.) In holding that the
City Fiscal of Manila has no authority to prosecute such violations independently
of the Anti-Dummy Board, it was said:
"Were the city fiscal or the provincial fiscals who have the power or right
to prosecute violations of all laws and ordinances allowed to prosecute
violations of the Anti-Dummy Board, there would be no order, concert,
cooperation, and coordination between the said agencies of the
government. The function of coordination which is entrusted to the Anti-
Dummy Board is evident from all the above-quoted provisions
of Republic Act No. 1130. There can be no coordination as envisioned in
the law unless the Anti-Dummy Board be given the power to direct and
control the city fiscal in the prosecutions of the violations of the Anti-
Dummy Law." (Rollo, p. 118; 5 SCRA 428, 433.)
In R. B. Industrial Development Co., Ltd. vs. Enage (24 SCRA 365) involving the
authority of the Bureau of Forestry over the management and use of public
forests and the transfer of licenses for the taking of forest products, this Court
has made this pronouncement:
"A doctrine long recognized is that where the law confines in an
administrative office the power to determine particular questions or
matters, upon the facts to be presented, the jurisdiction of such office
shall prevail over the courts." (p. 124, Rollo.)
It is our considered view that the Provincial Fiscal of Rizal lacked the authority to
file the information charging the petitioner with a violation of the provisions
of Republic Act No. 3931 there being no prior finding or determination by the
Commission that the act of the petitioner had caused pollution in any water or
atmospheric air of the Philippines. It is not to be understood, however, that a
fiscal or public prosecutor may not file an information for a violation of the said
law at all. He may do so if the Commission had made a finding or determination
that the law or any of its orders had been violated. In the criminal case presently
considered, there had been no prior determination by the Commission that the
supposed acts of the petitioner had caused pollution to any water of the
Philippines. The filing of the information for the violation of Section 9 of the law is,
therefore, premature and unauthorized. Concommitantly, the respondent Judge
is without jurisdiction to take cognizance of the offense charged therein. LLjur

WHEREFORE, the petition is hereby granted and the questioned Orders of the
respondent Judge are hereby annulled and set aside. The respondent Judge is
ordered to dismiss Criminal Case No. 5984-75 for lack of jurisdiction. No costs.
SO ORDERED.
Teehankee, Makasiar, Melencio-Herrera, Plana, Relova and Gutierrez, Jr.,
JJ., concur.
||| (Mead v. Argel, G.R. No. L-41958, [July 20, 1982], 200 PHIL 650-664)
G.R. No. 93891 March 11, 1991

POLLUTION ADJUDICATION BOARD, petitioner

vs.
COURT OF APPEALS and SOLAR TEXTILE FINISHING CORPORATION, respondents.

Oscar A. Pascua and Charemon Clio L. Borre for petitioner.

Leonardo A. Aurelio for respondent Solar Textile Finishing Corp.

RESOLUTION

FELICIANO, J.:

Petitioner Pollution Adjudication Board ("Board") asks us to review the Decision and Resolution
promulgated on 7 February 1990 and 10 May 1990, respectively, by the Court of Appeals in C.A.-G
R. No. SP 18821 entitled "Solar Textile Finishing Corporation v. Pollution Adjudication Board." In that
Decision and Resolution, the Court of Appeals reversed an order of the Regional Trial Court,
Quezon City, Branch 77, in Civil Case No. Q-89-2287 dismissing private respondent Solar Textile
Finishing Corporation's ("Solar") petition for certiorari and remanded the case to the trial court for
further proceedings.

On 22 September 1988, petitioner Board issued an ex parte Order directing Solar immediately to
cease and desist from utilizing its wastewater pollution source installations which were discharging
untreated wastewater directly into a canal leading to the adjacent Tullahan-Tinejeros River. The
Order signed by Hon. Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows:

Respondent, Solar Textile Finishing Corporation with plant and place of business at 999
General Pascual Avenue, Malabon, Metro Manila is involved in bleaching, rinsing and dyeing
textiles with wastewater of about 30 gpm. being directly discharged untreated into the sewer.
Based on findings in the Inspections conducted on 05 November 1986 and 15 November
1986, the volume of untreated wastewater discharged in the final out fall outside of the
plant's compound was even greater. The result of inspection conducted on 06 September
1988 showed that respondent's Wastewater Treatment Plant was noted unoperational and
the combined wastewater generated from its operation was about 30 gallons per minute and
80% of the wastewater was being directly discharged into a drainage canal leading to the
Tullahan-Tinejeros River by means of a by-pass and the remaining 20% was channelled into
the plant's existing Wastewater Treatment Plant (WTP). Result of the analyses of the sample
taken from the by-pass showed that the wastewater is highly pollutive in terms of Color units,
BOD and Suspended Solids, among others. These acts of respondent in spite of directives to
comply with the requirements are clearly in violation of Section 8 of Presidential Decree No.
984 and Section 103 of its Implementing Rules and Regulations and the 1982 Effluent
Regulations.

WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its Implementing Rules
and Regulations, respondent is hereby ordered to cease and desist from utilizing its
wastewater pollution source installation and discharging its untreated wastewater directly into
 the canal leading to the Tullahan-Tinejeros River effective immediately upon receipt hereof
and until such time when it has fully complied with all the requirements and until further
orders from this Board.

SO ORDERED.1

We note that the above Order was based on findings of several inspections of Solar's plant:

a. inspections conducted on 5 November 1986 and 12 November 1986 by the National

Pollution Control Commission ("NPCC"), the predecessor of the Board ;2 and

b. the inspection conducted on 6 September 1988 by the Department of Environment and

Natural Resources ("DENR").

The findings of these two (2) inspections were that Solar's wastewater treatment plant was non-
operational and that its plant generated about 30 gallons per minute of wastewater, 80% of which
was being directly discharged into a drainage canal leading to the Tullahan-Tinejeros River. The
remaining 20% of the wastewater was being channeled through Solar's non-operational wastewater
treatment plant. Chemical analysis of samples of Solar's effluents showed the presence of pollutants
on a level in excess of what was permissible under P.D. No. 984 and its Implementing Regulations.

A copy of the above Order was received by Solar on 26 September 1988. A Writ of Execution issued
by the Board was received by Solar on 31 March 1989.

Meantime, Solar filed a motion for reconsideration/appeal with prayer for stay of execution of the
Order dated 22 September 1988. Acting on this motion, the Board issued an Order dated 24 April
1989 allowing Solar to operate temporarily, to enable the Board to conduct another inspection and
evaluation of Solar's wastewater treatment facilities. In the same Order, the Board directed the
Regional Executive Director of the DENR/ NCR to conduct the inspection and evaluation within thirty
(30) days.

On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon City, Branch 77, on
petition for certiorari with preliminary injunction against the Board, the petition being docketed as
Civil Case No. Q-89-2287.

On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two (2) grounds, i.e., that
appeal and not certiorari from the questioned Order of the Board as well as the Writ of Execution
was the proper remedy, and that the Board's subsequent Order allowing Solar to operate temporarily
had rendered Solar's petition moot and academic.

Dissatisfied, Solar went on appeal to the Court of Appeals which, in the Decision here assailed,
reversed the Order of dismissal of the trial court and remanded the case to that court for further
proceedings. In addition, the Court of Appeals declared the Writ of Execution null and void. At the
same time, the Court of Appeals said in the dispositive portion of its Decision that:

. . .. Still and all, this decision is without prejudice to whatever action the appellee [Board]
may take relative to the projected 'inspection and evaluation' of appellant's [Solar's] water
treatment facilities. 3

The Court of Appeals, in so ruling, held that certiorari was a proper remedy since the Orders of
petitioner Board may result in great and irreparable injury to Solar; and that while the case might be
moot and academic, "larger issues" demanded that the question of due process be settled. Petitioner
Board moved for reconsideration, without success.

The Board is now before us on a Petition for Review basically arguing that:

1. its ex parte Order dated 22 September 1988 and the Writ of Execution were issued in
accordance with law and were not violative of the requirements of due process; and

2. the ex parte Order and the Writ of Execution are not the proper subjects of a petition for
certiorari.

The only issue before us at this time is whether or not the Court of Appeals erred in reversing the
trial court on the ground that Solar had been denied due process by the Board.

Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal authority to issue ex
parte orders to suspend the operations of an establishment when there is prima facie evidence that
such establishment is discharging effluents or wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the Board). Petitioner Board contends that
the reports before it concerning the effluent discharges of Solar into the Tullahan-Tinejeros River
provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent Code.

Solar, on the other hand, contends that under the Board's own rules and regulations, an ex
parte order may issue only if the effluents discharged pose an "immediate threat to life, public health,
safety or welfare, or to animal and plant life." In the instant case, according to Solar, the inspection
reports before the Board made no finding that Solar's wastewater discharged posed such a threat.

The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984 authorized petitioner
Board to issue ex parte cease and desist orders under the following circumstances:

P.D. 984, Section 7, paragraph (a), provides:

(a) Public Hearing. . . . Provided, That whenever the Commission finds prima facie evidence
that the discharged sewage or wastes are of immediate threat to life, public health, safety or
welfare, or to animal or plant life, or exceeds the allowable standards set by the Commission,
the Commissioner may issue an ex-parte order directing the discontinuance of the same or
the temporary suspension or cessation of operation of the establishment or person
generating such sewage or wastes without the necessity of a prior public hearing. The said
ex-parte order shall be immediately executory and shall remain in force until said
establishment or person prevents or abates the said pollution within the allowable standards
or modified or nullified by a competent court. (Emphasis supplied)

We note that under the above-quoted portion of Section 7(a) of P.D. No. 984, an ex parte cease and
desist order may be issued by the Board (a) whenever the wastes discharged by an establishment
pose an "immediate threat to life, public health, safety or welfare, or to animal or plant life," or (b)
whenever such discharges or wastes exceed "the allowable standards set by the [NPCC]." On the
one hand, it is not essential that the Board prove that an "immediate threat to life, public health,
safety or welfare, or to animal or plant life" exists before an ex parte cease and desist order may be
issued. It is enough if the Board finds that the wastes discharged do exceed "the allowable
standards set by the [NPCC]." In respect of discharges of wastes as to which allowable standards
have been set by the Commission, the Board may issue an ex parte cease and desist order when
there is prima facie evidence of an establishment exceeding such allowable standards. Where,
however, the effluents or discharges have not yet been the subject matter of allowable standards set
by the Commission, then the Board may act on an ex parte basis when it finds at least prima
facie proof that the wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable standards set by the
Commission existing at any given time may well not cover every possible or imaginable kind of
effluent or waste discharge, the general standard of an "immediate threat to life, public health, safety
or welfare, or to animal and plant life" remains necessary.

Upon the other hand, the Court must assume that the extant allowable standards have been set by
the Commission or Board precisely in order to avoid or neutralize an "immediate threat to life, public
health, safety or welfare, or to animal or plant life.''

Section 5 of the Effluent Regulations of 1982 4 sets out the maximum permissible levels of physical
and chemical substances which effluents from domestic wastewater treatment plants and industrial
plants" must not exceed "when discharged into bodies of water classified as Class A, B, C, D, SB
and SC in accordance with the 1978 NPCC Rules and Regulations." The waters of Tullahan-
Tinejeros River are classified as inland waters Class D under Section 68 of the 1978 NPCC Rules
and Regulations 5 which in part provides that:

Sec. 68. Water Usage and Classification. The quality of Philippine waters shall be
maintained in a safe and satisfactory condition according to their best usages. For this
purpose, all water shall be classified according to the following beneficial usages:

(a) Fresh Surface Water

Classification Best usage

xxx xxx xxx

Class D For agriculture, irrigation, livestock watering
and industrial cooling and processing.
xxx xxx xxx

(Emphases supplied)

The reports on the inspections carried on Solar's wastewater treatment facilities on 5 and 12
November 1986 and 6 September 1988 set forth the following Identical finding:

a. For legal action in [view of] implementing rules and regulations of P.D. No. 984 and
Section 5 of the Effluent Regulations of 1982. 6

Placing the maximum allowable standards set in Section 5 of the Effluent Regulations of 1982
alongside the findings of the November 1986 and September 1988 inspection reports, we get the
following results:

"Inland November September

Waters 1986 1988
(Class C & D7 Report8 Report9
Station 1 Station 1
a) Color in 100 a) Color units 250 125
platinum (Apparent
 cobalt Color)
units
b) pH 6-8.5 b) pH 9.3 8.7
c) Tempera- 40 c) Temperature
ture in C (C)
d) Phenols in 0.1 d) Phenols in
mg.1 mg./1.
e) Suspended 75 e) Suspended 340 80
solids in solids in
mg./1. mg./1.
f) BOD in 80 f) BOD (5-day) 1,100 152
mg./1. mg./1
g) oil/Grease 10 g) Oil/Grease
in mg./1. mg./1.
h) Detergents 5 h) Detergents 2.93
mg./1." mg./1. MBAS
i) Dissolved 0
oxygen, mg./1.
j) Settleable 0.4 1.5
Matter, mg./1.
k) Total Dis 800 610
solved Solids
mg./1.
l) Total Solids 1,400 690
m) Turbidity NTU / ppm, SiO3 70

The November 1986 inspections report concluded that:

Records of the Commission show that the plant under its previous owner, Fine Touch
Finishing Corporation, was issued a Notice of Violation on 20 December 1985 directing same
to cease and desist from conducting dyeing operation until such time the waste treatment
plant is already completed and operational. The new owner Solar Textile Corporation
informed the Commission of the plant acquisition thru its letter dated March 1986 (sic).

The new owner was summoned to a hearing held on 13 October 1986 based on the adverse
findings during the inspection/water sampling test conducted on 08 August 1986. As per
instruction of the Legal Division a re- inspection/sampling text should be conducted first
before an appropriate legal action is instituted; hence, this inspection.

Based on the above findings, it is clear that the new owner continuously violates the directive
of the Commission by undertaking dyeing operation without completing first and operating its
existing WTP. The analysis of results on water samples taken showed that the untreated
wastewater from the firm pollutes our water resources. In this connection, it is recommended
that appropriate legal action be instituted immediately against the firm. . . .10

The September 1988 inspection report's conclusions were:

1. The plant was undertaking dyeing, bleaching and rinsing operations during the inspection.
The combined wastewater generated from the said operations was estimated at about 30
 gallons per minute. About 80% of the wastewater was traced directly discharged into a
drainage canal leading to the Tullahan-Tinejeros river by means of a bypass. The remaining
20% was channeled into the plant's existing wastewater treatment plant (WTP).

2. The WTP was noted not yet fully operational- some accessories were not yet
installed. Only the sump pit and the holding/collecting tank are functional but appeared
1wphi1

seldom used. The wastewater mentioned channeled was noted held indefinitely into the
collection tank for primary treatment. There was no effluent discharge [from such collection
tank].

3. A sample from the bypass wastewater was collected for laboratory analyses. Result of the
analyses show that the bypass wastewater is polluted in terms of color units, BOD and
suspended solids, among others. (Please see attached laboratory resul .)11

From the foregoing reports, it is clear to this Court that there was at least prima facie evidence
before the Board that the effluents emanating from Solar's plant exceeded the maximum allowable
levels of physical and chemical substances set by the NPCC and that accordingly there was
adequate basis supporting the ex parte cease and desist order issued by the Board. It is also well to
note that the previous owner of the plant facility Fine Touch Finishing Corporation had been issued a
Notice of Violation on 20 December 1985 directing it to cease and refrain from carrying out dyeing
operations until the water treatment plant was completed and operational. Solar, the new owner,
informed the NPCC of the acquisition of the plant on March 1986. Solar was summoned by the
NPCC to a hearing on 13 October 1986 based on the results of the sampling test conducted by the
NPCC on 8 August 1986. Petitioner Board refrained from issuing an ex parte cease and desist order
until after the November 1986 and September 1988 re-inspections were conducted and the violation
of applicable standards was confirmed. In other words, petitioner Board appears to have been
remarkably forbearing in its efforts to enforce the applicable standards vis-a-vis Solar. Solar, on the
other hand, seemed very casual about its continued discharge of untreated, pollutive effluents into
the Tullahan- Tinerejos River, presumably loath to spend the money necessary to put its Wastewater
Treatment Plant ("WTP") in an operating condition.

In this connection, we note that in Technology Developers, Inc. v. Court of appeals, et al.,12 the Court
very recently upheld the summary closure ordered by the Acting Mayor of Sta. Maria, Bulacan, of a
pollution-causing establishment, after finding that the records showed that:

1. No mayor's permit had been secured. While it is true that the matter of determining
whether there is a pollution of the environment that requires control if not prohibition of the
operation of a business is essentially addressed to the then National Pollution Control
Commission of the Ministry of Human Settlements, now the Environmental Management
Bureau of the Department of Environment and Natural Resources, it must be recognized that
the mayor of a town has as much responsibility to protect its inhabitants from pollution, and
by virtue of his police power, he may deny the application for a permit to operate a business
or otherwise close the same unless appropriate measures are taken to control and/or avoid
injury to the health of the residents of the community from the emission in the operation of
the business.

2. The Acting Mayor, in a letter of February l6, 1989, called the attention of petitioner to the
pollution emitted by the fumes of its plant whose offensive odor "not only pollute the air in the
locality but also affect the health of the residents in the area," so that petitioner was ordered
to stop its operation until further orders and it was required to bring the following:

xxx xxx xxx

 (3) Region III-Department of Environment and Natural Resources Anti-Pollution
permit. (Annex A-2, petition)

3. This action of the Acting Mayor was in response to the complaint of the residents of
Barangay Guyong, Sta. Maria, Bulacan, directed to the Provincial Governor through
channels (Annex A-B, petition).. . .

4. The closure order of the Acting Mayor was issued only after an investigation was made by
Marivic Guina who in her report of December 8, 1988 observed that the fumes emitted by the
plant of petitioner goes directly to the surrounding houses and that no proper air pollution
device has been installed. (Annex A-9, petition)

xxx xxx xxx

6. While petitioner was able to present a temporary permit to operate by the then National
Pollution Control Commission on December 15,1987, the permit was good only up to May
25,1988 (Annex A-12, petition). Petitioner had not exerted any effort to extend or validate its
permit much less to install any device to control the pollution and prevent any hazard to the
health of the residents of the community."

In the instant case, the ex parte cease and desist Order was issued not by a local government
official but by the Pollution Adjudication Board, the very agency of the Government charged with the
task of determining whether the effluents of a particular industrial establishment comply with or
violate applicable anti-pollution statutory and regulatory provisions.

Ex parte cease and desist orders are permitted by law and regulations in situations like that here
presented precisely because stopping the continuous discharge of pollutive and untreated effluents
into the rivers and other inland waters of the Philippines cannot be made to wait until protracted
litigation over the ultimate correctness or propriety of such orders has run its full course, including
multiple and sequential appeals such as those which Solar has taken, which of course may take
several years. The relevant pollution control statute and implementing regulations were enacted and
promulgated in the exercise of that pervasive, sovereign power to protect the safety, health, and
general welfare and comfort of the public, as well as the protection of plant and animal life,
commonly designated as the police power. It is a constitutional commonplace that the ordinary
requirements of procedural due process yield to the necessities of protecting vital public interests
like those here involved, through the exercise of police power. The Board's ex parte Order and Writ
of Execution would, of course, have compelled Solar temporarily to stop its plant operations, a state
of affairs Solar could in any case have avoided by simply absorbing the bother and burden of putting
its WTP on an operational basis. Industrial establishments are not constitutionally entitled to reduce
their capitals costs and operating expenses and to increase their profits by imposing upon the public
threats and risks to its safety, health, general welfare and comfort, by disregarding the requirements
of anti- pollution statutes and their implementing regulations.

It should perhaps be made clear the Court is not here saying that the correctness of the ex
parte Order and Writ of Execution may not be contested by Solar in a hearing before the Board itself.
Where the establishment affected by an ex parte cease and desist order contests the correctness of
the prima facie findings of the Board, the Board must hold a public hearing where such
establishment would have an opportunity to controvert the basis of such ex parte order. That such
an opportunity is subsequently available is really all that is required by the due process clause of the
Constitution in situations like that we have here. The Board's decision rendered after the public
hearing may then be tested judicially by an appeal to the Court of Appeals in accordance with
Section 7(c) of P.D. No. 984 and Section 42 of the Implementing Rules and Regulations. A
subsequent public hearing is precisely what Solar should have sought instead of going to court to
seek nullification of the Board's Order and Writ of Execution and instead of appealing to the Court of
Appeals. It will be recalled the at the Board in fact gave Solar authority temporarily to continue
operations until still another inspection of its wastewater treatment facilities and then another
analysis of effluent samples could be taken and evaluated.

Solar claims finally that the petition for certiorari was the proper remedy as the questioned Order and
Writ of Execution issued by the Board were patent nullities. Since we have concluded that the Order
and Writ of Execution were entirely within the lawful authority of petitioner Board, the trial court did
not err when it dismissed Solar's petition for certiorari. It follows that the proper remedy was an
appeal from the trial court to the Court of Appeals, as Solar did in fact appeal.

ACCORDINGLY, the Petition for Review is given DUE COURSE and the Decision of the Court of
Appeals dated 7 February 1990 and its Resolution dated 10 May 1990 in A.C.-G.R. No. SP 18821
are hereby SET ASIDE. The Order of petitioner Board dated 22 September 1988 and the Writ of
Execution, as well as the decision of the trial court dated 21 July 1989, are hereby REINSTATED,
without prejudice to the right of Solar to contest the correctness of the basis of the Board's Order and
Writ of Execution at a public hearing before the Board.

Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
 [G.R. No. 93891. March 11, 1991.]

POLLUTION ADJUDICATION BOARD, petitioner, vs. COURT OF

APPEALS and SOLAR TEXTILE FINISHING
CORPORATION, respondents.

Oscar A. Pascua and Charemon Clio L. Borre for petitioner.

Leonardo A. Aurelio for respondent Solar Textile Finishing Corp.

SYLLABUS

1. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; MAY ISSUE

CEASE AND DESIST ORDERS EX-PARTE; BASIS. Section 7(a) of P.D. No.
984 authorized petitioner Board to issue ex parte cease and desist orders. An ex
parte cease and desist order may be issued by the Board (a) whenever the
wastes discharged by an establishment pose an "immediate threat to life, public
health, safety or welfare, or to animal or plant life," or (b) whenever such
discharges or wastes exceed "the allowable standards set by the [NPCC]." On
the one hand, it is not essential that the Board prove that an "immediate threat to
life, public health, safety or welfare, or to animal or plant life" exists before an ex
parte cease and desist order may be issued. It is enough if the Board finds that
the wastes discharged do exceed "the allowable standards set by the [NPCC]."
In respect of discharges of wastes as to which allowable standards have been
set by the Commission, the Board may issue an ex parte cease and desist order
when there is prima facie evidence of an establishment exceeding such
allowable standards. Where, however, the effluents or discharges have not yet
been the subject matter of allowable standards set by the Commission, then the
Board may act on an ex parte basis when it finds at least prima facie proof that
the wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable standards
set by the Commission existing at any given time may well not cover every
possible or imaginable kind of effluent or waste discharge, the general standard
of an "immediate threat to life public health, safety or welfare, or to animal and
plant life" remains necessary.
2. POLITICAL LAW; POLICE POWER; ENACTMENT OF POLLUTION
CONTROL STATUTES AND IMPLEMENTING REGULATIONS, AN EXERCISE
THEREOF. The relevant pollution control statute and implementing
regulations were enacted and promulgated in the exercise of that persuasive,
sovereign power to protect the safety, health, and general welfare and comfort of
the public, as well as the protection of plant and animal life, commonly
designated as the police power.
3. CONSTITUTIONAL LAW; DUE PROCESS; YIELDS TO THE EXERCISE OF
POLICE POWER. It is a constitutional common place that the ordinary
requirements of procedural due process yield to the necessities of protecting vital
public interests like those here involved, through the exercise of police power.
4. ADMINISTRATIVE LAW; POLLUTION ADJUDICATION BOARD; DUE
PROCESS; HOLDING OF PUBLIC HEARING AFTER EX-PARTE ISSUANCE
OF A CEASE AND DESIST ORDER, SUFFICIENT COMPLIANCE WITH DUE
PROCESS CLAUSE. Where the establishment affected by an ex parte cease
and desist order contests the correctness of the prima facie findings of the Board,
the Board must hold a public hearing where such establishment would have an
opportunity to controvert the basis of such ex parte order. That such an
opportunity is subsequently available is really all that is required by the due
process clause of the Constitution in situations like that we have here.
5. REMEDIAL LAW; ACTIONS; APPEAL; PROPER REMEDY WHERE
QUESTIONED ORDER AND WRIT OF EXECUTION WHERE LAWFUL.
Solar claims finally that the petition for certiorari was the proper remedy as the
questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that Order and Writ of Execution were
entirely within the lawful authority of petitioner Board, the trial court did not err
when it dismissed Solar's petition for certiorari. It follows that the proper
remedy was an appeal from the trial court to the Court of Appeals, as Solar
did in fact appeal.

RESOLUTION

FELICIANO, J : p

Petitioner Pollution Adjudication Board ("Board") asks us to review the Decision

and Resolution promulgated on 7 February 1990 and 10 May 1990, respectively,
by the Court of Appeals in C.A.-G.R. No. SP 18821 entitled "Solar Textile
Finishing Corporation v. Pollution Adjudication Board." In that Decision and
Resolution, the Court of Appeals reversed an order of the Regional Trial Court,
Quezon City, Branch 77, in Civil Case No. Q-89-2287 dismissing private
respondent Solar Textile Finishing Corporation's ("Solar") petition for certiorari
and remanded the case to the trial court for further proceedings.
On 22 September 1988, petitioner Board issued an ex parte Order directing Solar
immediately to cease and desist from utilizing its wastewater pollution source
installations which were discharging untreated wastewater directly into a canal
leading to the adjacent Tullahan-Tinejeros River. The Order signed by Hon.
Fulgencio Factoran, Jr., as Board Chairman, reads in full as follows:
"Respondent, Solar Textile Finishing Corporation with plant and place of
business at 999 General Pascual Avenue, Malabon, Metro Manila is
involved in bleaching, rinsing and dyeing textiles with wastewater of
about 30 gpm. being directly discharged untreated into the sewer. Based
on findings in the Inspections conducted on 05 November 1986 and 15
November 1986, the volume of untreated wastewater discharged in the
final outfall outside of the plant's compound was even greater. The result
of inspection conducted on 06 September 1988 showed that
respondent's Wastewater Treatment Plant was noted unoperational and
the combined wastewater generated from its operation was about 30
gallons per minute and 80% of the wastewater was being directly
discharged into a drainage canal leading to the Tullahan-Tinejeros River
by means of a by-pass and the remaining 20% was channeled into the
plant's existing Wastewater Treatment Plant (WTP). Result of the
analyses of the sample taken from the by - pass showed that the
wastewater is highly pollutive in terms of Color units, BOD and
Suspended Solids, among others. These acts of respondent in spite of
directives to comply with the requirements are clearly in violation of
Section 8 of Presidential Decree No. 984 and Section 103 of its
Implementing Rules and Regulations and the 1982 Effluent Regulations.
WHEREFORE, pursuant to Section 7 of P.D. 984 and Section 38 of its
Implementing Rules and Regulations, respondent is hereby ordered to
cease and desist from utilizing its wastewater pollution source
installations and discharging its untreated wastewater directly into the
canal leading to the Tullahan-Tinejeros River effective immediately upon
receipt hereof and until such time when it has fully complied with all the
requirements and until further orders from this Board.
SO ORDERED." 1
We note that the above Order was based on findings of several inspections of
Solar's plant:
a. inspections conducted on 5 November 1986 and 12 November 1986
by the National Pollution Control Commission ("NPCC"), the
predecessor of the Board; 2 and
b. the inspection conducted on 6 September 1988 by the Department of
Environment and Natural Resources ("DENR").
The findings of these two (2) inspections were that Solar's wastewater
treatment plant was non-operational and that its plant generated about 30
gallons per minute of wastewater, 80% of which was being directly discharged
into a drainage canal leading to the Tullahan-Tinejeros River. The remaining
 20% of the wastewater was being channeled through Solar's non-operational
wastewater treatment plant. Chemical analysis of samples of Solar's effluents
showed the presence of pollutants on a level in excess of what was
permissible under P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26 September 1988. A Writ
of Execution issued by the Board was received by Solar on 31 March 1989.
Meantime, Solar filed a motion for reconsideration appeal with prayer for stay of
execution of the Order dated 22 September 1988. Acting on this motion, the
Board issued an Order dated 24 April 1989 allowing Solar to operate temporarily,
to enable the Board to conduct another inspection and evaluation of Solar's
wastewater treatment facilities. In the same Order, the Board directed the
Regional Executive Director of the DENR NCR to conduct the inspection and
evaluation within thirty (30) days.
On 21 April 1989, however, Solar went to the Regional Trial Court of Quezon
City, Branch 77, on petition for certiorari with preliminary injunction against the
Board, the petition being docketed as Civil Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's petition upon two (2)
grounds, i.e., that appeal and not certiorari from the questioned Order of the
Board as well as the Writ of Execution was the proper remedy, and that the
Board's subsequent Order allowing Solar to operate temporarily had rendered
Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals which, in the Decision
here assailed, reversed the Order of dismissal of the trial court and remanded the
case to that court for further proceedings. In addition, the Court of Appeals
declared the Writ of Execution null and void. At the same time, the Court of
Appeals said in the dispositive portion of its Decision that:
". . . Still and all, this decision is without prejudice to whatever action the
appellee [Board] may take relative to the projected 'inspection and
evaluation' of appellant's [Solar's] water treatment facilities." 3
The Court of Appeals, in so ruling, held that certiorari was a proper remedy since
the Orders of petitioner Board may result in great and irreparable injury to Solar;
and that while the case might be moot and academic, "larger issues" demanded
that the question of due process be settled. Petitioner Board moved for
reconsideration, without success. prcd

The Board is now before us on a Petition for Review basically arguing that:
1. its ex parte Order dated 22 September 1988 and the Writ of
Execution were issued in accordance with law and were not
violative of the requirements of due process; and
 2. the ex parte Order and the Writ of Execution are not the proper
subjects of a petition for certiorari.
The only issue before us at this time is whether or not the Court of Appeals erred
in reversing the trial court on the ground that Solar had been denied due process
by the Board. LibLex

Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal
authority to issue ex parte orders to suspend the operations of an establishment
when there is prima facie evidence that such establishment is discharging
effluents or wastewater, the pollution level of which exceeds the maximum
permissible standards set by the NPCC (now, the Board). Petitioner Board
contends that the reports before it concerning the effluent discharges of Solar
into the Tullahan-Tinejeros River provided prima facie evidence of violation by
Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own rules and
regulations, an ex parte order may issue only if the effluents discharged pose an
"immediate threat to life, public health; safety or welfare, or to animal and plant
life." In the instant case, according to Solar, the inspection reports before the
Board made no finding that Solar's wastewater discharged posed such a threat.
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No.
984 authorized petitioner Board to issue ex parte cease and desist orders under
the following circumstances:
"P.D. 984, Section 7, paragraph (a), provides:
(a) Public Hearing . . . Provided, That whenever the Commission finds
prima facie evidence that the discharged sewage or wastes are of
immediate threat to life, public health, safety or welfare, or to animal or
plant life, or exceeds the allowable standards set by the Commission,
the Commissioner may issue an ex-parte order directing the
discontinuance of the same or the temporary suspension or cessation of
operation of the establishment or person generating such sewage or
wastes without the necessity of a prior public hearing. The said ex-parte
order shall be immediately executory and shall remain in force until said
establishment or person prevents or abates the said pollution within the
allowable standards or modified or nullified by a competent court."
(Emphasis supplied).
We note that under the above-quoted portion of Section 7(a) of P.D. No. 984,
an ex parte cease and desist order may be issued by the Board (a) whenever the
wastes discharged by an establishment pose an "immediate threat to life, public
health, safety or welfare, or to animal or plant life," or (b) whenever such
discharges or wastes exceed "the allowable standards set by the [NPCC]." On
the one hand, it is not essential that the Board prove that an "immediate threat to
life, public health, safety or welfare, or to animal or plant life" exists before an ex
parte cease and desist order may be issued. It is enough if the Board finds that
the wastes discharged do exceed "the allowable standards set by the [NPCC]."
In respect of discharges of wastes as to which allowable standards have been
set by the Commission, the Board may issue an ex parte cease and desist order
when there is prima facie evidence of an establishment exceeding such
allowable standards. Where, however, the effluents or discharges have not yet
been the subject matter of allowable standards set by the Commission, then the
Board may act on an ex parte basis when it finds at least prima facie proof that
the wastewater or material involved presents an "immediate threat to life, public
health, safety or welfare or to animal or plant life." Since the applicable standards
set by the Commission existing at any given time may well not cover every
possible or imaginable kind of effluent or waste discharge, the general standard
of an "immediate threat to life public health, safety or welfare, or to animal and
plant life" remains necessary. Cdpr

Upon the other hand, the Court must assume that the extant allowable standards
have been set by the Commission or Board precisely in order to avoid or
neutralize an "immediate threat to life, public health, safety or welfare, or to
animal or plant life."
Section 5 of the Effluent Regulations of 1982 4 sets out the maximum
permissible levels of physical and chemical substances which effluents from
domestic wastewater treatment plants and industrial plants must not exceed
"when discharged into bodies of water classified as Class A, B, C, D, SB and SC
in accordance with the 1978 NPCC Rules and Regulations." The waters of
Tullahan-Tinejeros River are classified as inland waters Class D under Section
68 of the 1978 NPCC Rules and Regulations, 5 which in part provides that:
"Section 68. Water Usage and Classification. The quality of Philippine
waters shall be maintained in a safe and satisfactory condition according
to their best usages. For this purpose, all water shall be classified
according to the following beneficial usages:
(a) Fresh Surface Water.
Classification Best usage
xxx xxx xxx
Class D For agriculture, irrigation,
live stock watering and
industrial cooling and
processing
xxx xxx xxx
(Emphases supplied)
The reports on the inspections carried on Solar's wastewater treatment facilities
on 5 and 12 November 1986 and 6 September 1988 set forth the following
identical finding:
"a. For legal action in [view of] violation of Section 103 of the
implementing rules and regulations of P.D. No. 984 and Section 5 of the
Effluent Regulations of 1982." 6
Placing the maximum allowable standards set in Section 5 of the Effluent
Regulations of 1982 alongside the findings of the November 1986 and
September 1988 inspection reports, we get the following results:
"Inland November September
Waters 1986 1988

(Class C & D) 7 Report 8 Report 9

Station 1 Station 1
a) Color in 100 a) Color units 250 125
platinum (Apparent
cobalt Color)
units
b) p H 6-8.5 b) pH 9.3 8.7
c) Tempera- 40 c) Temperature
ture in C (C)
d) Phenols in 0.1 d) Phenols in
mg./l. mg./l.
e) Suspended 75 e) Suspended 340 80
solids in solids in
mg./l. mg./l.
f) BOD in 80 f) BOD (5-day) 1,100 152
mg./l mg./l.
g) oil/Grease 10 g) Oil/Grease
in mg./l. mg./l.
h) Detergents 5 h) Detergents 2.93
in mg./l." mg./l. MBAS
i) Dissolved 0
Oxygen, mg./l.
 j) Settleable 0.4 1.5
Matter, mg./l.
k) Total Dis- 800 610
solved Solids
mg./l.
l) Total Solids 1,400 690
mg./l.
m) Turbidity
NTU/ppm. SiO3 70

The November 1986 inspections report concluded that:

"Records of the Commission show that the plant under its previous
owner, Fine Touch Finishing Corporation, was issued a Notice of
Violation on 20 December 1985 directing same to cease and desist from
conducting dyeing operation until such time the waste treatment plant is
already completed and operational. The new owner Solar Textile
Corporation informed the Commission of the plant acquisition thru its
letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13 October 1986
based on the adverse findings during the inspection/water sampling test
conducted on 08 August 1986. As per instruction of the Legal Division a
re-inspection/sampling test should be conducted first before an
appropriate legal action is instituted; hence, this inspection.
Based on the above findings, it is clear that the new owner continuously
violates the directive of the Commission by undertaking dyeing operation
without completing first and operating its existing WTP. The analysis of
results on water samples taken showed that the untreated wastewater
from the firm pollutes our water resources. In this connection, it is
recommended that appropriate legal action be instituted immediately
against the firm . . ." 10
The September 1988 inspection report's conclusions were:
"1. The plant was undertaking dyeing, bleaching and rinsing operations
during the inspection. The combined wastewater generated from the
said operations was estimated at about 30 gallons per minute. About
80% of the wastewater was traced directly discharged into a drainage
canal leading to the Tullahan - Tinejeros river by means of a bypass.
The remaining 20% was channeled into the plant's existing wastewater
treatment plant (WTP).
 2. The WTP was noted not yet fully operational some accessories
were not yet installed. Only the sump pit and the holding/collecting tank
are functional but appeared seldom used. The wastewater mentioned
channeled was noted held indefinitely into the collection tank for primary
treatment. There was no effluent discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for laboratory
analyses. Result of the analyses show that the bypass wastewater is
polluted in terms of color units, BOD and suspended solids, among
others. (Please see attached laboratory result)." 11
From the foregoing reports, it is clear to this Court that there was at least prima
facie evidence before the Board that the effluents emanating from Solar's plant
exceeded the maximum allowable levels of physical and chemical substances
set by the NPCC and that accordingly there was adequate basis supporting
the ex parte cease and desist order issued by the Board. It is also well to note
that the previous owner of the plant facility Fine Touch Finishing Corporation
had been issued a Notice of Violation on 20 December 1985 directing it to
cease and refrain from carrying out dyeing operations until the water treatment
plant was completed and operational. Solar, the new owner, informed the NPCC
of the acquisition of the plant on March 1986. Solar was summoned by the NPCC
to a hearing on 13 October 1986 based on the results of the sampling test
conducted by the NPCC on 8 August 1986. Petitioner Board refrained from
issuing an ex parte cease and desist order until after the November 1986 and
September 1988 re-inspections were conducted and the violation of applicable
standards was confirmed. In other words, petitioner Board appears to have been
remarkably forbearing in its efforts to enforce the applicable standards vis-a-vis
Solar. Solar, on the other hand, seemed very casual about its continued
discharge of untreated, pollutive effluents into the Tullahan-Tinejeros River,
presumably loath to spend the money necessary to put its Wastewater Treatment
Plant ("WTP") in an operating condition. cdrep

In this connection, we note that in Technology Developers, Inc. v. Court of

Appeals, et al., 12 the Court very recently upheld the summary closure ordered
by the Acting Mayor of Sta. Maria, Bulacan, of a pollution-causing establishment,
after finding that the records showed that:
"1. No mayor's permit had been secured. While it is true that the matter
of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is
essentially addressed to the then National Pollution Control Commission
of the Ministry of Human Settlements, now the Environmental
Management Bureau of the Department of Environment and Natural
Resources, it must be recognized that the mayor of a town has as much
responsibility to protect its inhabitants from pollution, and by virtue of his
 police power, he may deny the application for a permit to operate a
business or otherwise close the same unless appropriate measures are
taken to control and or avoid injury to the health of the residents of the
community from the emission in the operation of the business.
2. The Acting Mayor, in a letter of February 16, 1989, called the attention
of petitioner to the pollution emitted by the fumes of its plant whose
offensive odor "not only pollute the air in the locality but also affect the
health of the residents in the area," so that petitioner was ordered to stop
its operation until further orders and it was required to bring the
following:
xxx xxx xxx
(3) Region III-Department of Environment and Natural
Resources Anti-Pollution permit. (Annex A-2, petition).
3. This action of the Acting Mayor was in response to the complaint of
the residents of Barangay Guyong, Sta. Maria, Bulacan, directed to the
Provincial Governor through channels (Annex A-B, petition). . . .
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report of December
8, 1988 observed that the fumes emitted by the plant of petitioner goes
directly to the surrounding houses and that noproper air pollution device
has been installed. (Annex A-9, petition).
xxx xxx xxx
6. While petitioner was able to present a temporary permit to operate by
the then National Pollution Control Commission on December 15, 1987,
the permit was good only up to May 25, 1988 (Annex A-12, petition).
Petitioner had not exerted any effort to extend or validate its permit much
less to install any device to control the pollution and prevent any hazard
to the health of the residents of the community."
In the instant case, the ex parte cease and desist Order was issued not by a local
government official but by the Pollution Adjudication Board, the very agency of
the Government charged with the task of determining whether the effluents of a
particular industrial establishment comply with or violate applicable anti-pollution
statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and regulations in
situations like that here presented precisely because stopping the continuous
discharge of pollutive and untreated effluents into the rivers and other inland
waters of the Philippines cannot be made to wait until protracted litigation over
the ultimate correctness or propriety of such orders has run its full course,
including multiple and sequential appeals such as those which Solar has taken,
which of course may take several years. The relevant pollution control statute
and implementing regulations were enacted and promulgated in the exercise of
that persuasive, sovereign power to protect the safety, health, and general
welfare and comfort of the public, as well as the protection of plant and animal
life, commonly designated as the police power. It is a constitutional common
place that the ordinary requirements of procedural due process yield to the
necessities of protecting vital public interests like those here involved, through
the exercise of police power. The Board's ex parteOrder and Writ of Execution
would, of course, have compelled Solar temporarily to stop its plant operations, a
state of affairs Solar could in any case have avoided by simply absorbing the
bother and burden of putting its WTP on an operational basis. Industrial
establishments are not constitutionally entitled to reduce their capitals costs and
operating expenses and to increase their profits by imposing upon the public
threats and risks to its safety, health, general welfare and comfort, by
disregarding the requirements of anti-pollution statutes and their implementing
regulations.cdll

It should perhaps be made clear the Court is not here saying that the correctness
of the ex parte Order and Writ of Execution may not be contested by Solar in a
hearing before the Board itself. Where the establishment affected by an ex
parte cease and desist order contests the correctness of the prima facie findings
of the Board, the Board must hold a public hearing where such establishment
would have an opportunity to controvert the basis of such ex parte order. That
such an opportunity is subsequently available is really all that is required by the
due process clause of the Constitution in situations like that we have here. The
Board's decision rendered after the public hearing may then be tested judicially
by an appeal to the Court of Appeals in accordance with Section 7(c) of P.D. No.
984 and Section 42 of the Implementing Rules and Regulations. A subsequent
public hearing is precisely what Solar should have sought instead of going to
court to seek nullification of the Board's Order and Writ of Execution and instead
of appealing to the Court of Appeals. It will be recalled that the Board in fact gave
Solar authority temporarily to continue operations until still another inspection of
its wastewater treatment facilities and then another analysis of effluent samples
could be taken and evaluated.
Solar claims finally that the petition for certiorari was the proper remedy as the
questioned Order and Writ of Execution issued by the Board were patent
nullities. Since we have concluded that Order and Writ of Execution were entirely
within the lawful authority of petitioner Board, the trial court did not err when it
dismissed Solar's petition for certiorari. It follows that the proper remedy was an
appeal from the trial court to the Court of Appeals, as Solar did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE and the
Decision of the Court of Appeals dated 7 February 1990 and its Resolution dated
10 May 1990 in A.C.-G.R. No. SP 18821 are hereby SET ASIDE. The Order of
petitioner Board dated 22 September 1988 and the Writ of Execution, as well as
the decision of the trial court dated 21 July 1989, are hereby REINSTATED,
without prejudice to the right of Solar to contest the correctness of the basis of
the Board's Order and Writ of Execution at a public hearing before the Board.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
(Pollution Adjudication Board v. Court of Appeals, G.R. No. 93891 (Resolution),
|||

[March 11, 1991], 272-A PHIL 66-80)

 FIRST DIVISION

[G.R. No. 94759. January 21, 1991.]

TECHNOLOGY DEVELOPERS,
INC., petitioner, vs. COURT OF APPEALS, HON. NARCISO T.
ATIENZA as Presiding Judge, Bulacan, RTC, and HON.
VICENTE CRUZ, Acting Mayor and the MUNICIPALITY OF STA.
MARIA, BULACAN,respondents.

Diosdado P. Peralta for petitioner.

DECISION

GANCAYCO, J : p

The authority of the local executive to protect the community from pollution is the
center of this controversy. prcd

The antecedent facts are related in the appealed

decision of the Court of Appeals as follows:
"Petitioner, a domestic private corporation engaged in the manufacture
and export of charcoal briquette, received a letter dated February 16,
1989 from private respondent acting mayor Pablo N. Cruz, ordering the
full cessation of the operation of the petitioner's plant located at Guyong,
Sta. Maria, Bulacan, until further order. The letter likewise requested
Plant Manager Mr. Armando Manese to bring with him to the office of the
mayor on February 20, 1989 the following: a) Building permit; b) Mayor's
permit; c) Region III-Pollution of Environment and Natural Resources
Anti-Pollution Permit; and of other document.
At the requested conference on February 20, 1989, petitioner, through
its representative, undertook to comply with respondent's request for the
production of the required documents. In compliance with said
undertaking, petitioner commenced to secure "Region III-
Department of Environmental and Natural Resources Anti-Pollution
Permit," although among the permits previously secured prior to the
operation of petitioner's plant was a "Temporary Permit to Operate Air
Pollution Installation" issued by the then National Pollution Control
Commission (now Environmental Management Bureau) and is now at a
stage where the Environmental Management Bureau is trying to
determine the correct kind of anti-pollution devise to be installed as
part ofpetitioner's request for the renewal of its permit.
Petitioner's attention having been called to its lack of mayor's permit, it
sent its representatives to the office of the mayor to secure the same but
were not entertained. LLphil

On April 6, 1989, without previous and reasonable notice upon

petitioner, respondent acting mayor ordered the Municipality's station
commander to padlock the premises of petitioner's plant, thus effectively
causing the stoppage of its operation.
Left with no recourse, petitioner instituted an action for certiorari,
prohibition, mandamus with preliminary injunction against private
respondent with the court a quo which is presided by the respondent
judge. In its prayer for the issuance of a writ ofpreliminary mandatory
injunction, it alleged therein that the closure order was issued in grave
abuse of discretion.
During the hearing of the application for the issuance of a
writ of preliminary injunction on April 14, 1989, herein parties adduced
their respective evidences. The respondent judge, on April 19, 1989,
found that petitioner is entitled to the issuance of the writ ofpreliminary
mandatory injunction, hence, it ordered as follows:
"In view of the foregoing, upon petitioner's posting of a bond in the
amount of P50,000.00 to answer for such damages that respondents
may sustain should petitioner eventually be found not entitled to the
injunctive relief hereby issued, let a PRELIMINARY MANDATORY
INJUNCTION issue ordering the respondent Hon. Pablo N. Cruz, and
other person acting in his behalf and stead to immediately revoke his
closure order dated April 6, 1989, and allow petitioner to resume its
normal business operations until after the instant case shall have been
adjudicated on the merits without prejudice to the inherent
power of thecourt to alter, modify or even revoke this order at any given
time.
"SO ORDERED."
The writ of preliminary mandatory injunction was issued on April 28,
1989, upon petitioner's posting a bond in the amount ofP50,000.00.
Private respondent filed his motion for reconsideration dated May 3,
1989. Said motion for reconsideration was heard on May 30, 1989.
Petitioner's counsel failed to appear and the hearing proceeded with the
Provincial Prosecutor presenting his evidence. The following documents
were submitted:
a) Exhibit "A", Investigation report on the Technology Developers Inc.,
prepared by one Marivic Guina, and her conclusion and
recommendation read:
 "Due to the manufacturing process and nature of raw materials
used, the fumes coming from the factory may contain particulate
matters which are hazardous to the health of the people. As such,
the company should cease operating until such a time that the
proper air pollution device is installed and operational."
b) Exhibits "B", "B-1", "B-2", three (3) sheets of coupon bond containing
signatures of residents of Barangay Guyong, Sta. Maria, Bulacan;
c) Exhibit "B-3", a letter addressed to Hon. Roberto Pagdanganan,
Governor of the Province of Bulacan, dated November 22, 1988,
complaining about the smoke coming out of the chimney of the company
while in operation.LexLib

Reassessing all the evidence adduced, the lower court, on June 14,
1989, issued an order (a) setting aside the order dated April 28, 1989,
which granted a Writ of Preliminary Mandatory Injunction, and (b)
dissolving the writ consequently issued.
A motion for reconsideration dated July 6, 1989 was filed by petitioner.
Said motion drew an opposition dated July 19, 1989 from private
respondent.
Resolving the petitioner's motion for reconsideration, the respondent
judge issued an order dated August 9, 1989, denying said motion for
reconsideration. 1
Hence a petition for certiorari and prohibition with preliminary injunction was filed
by petitioner in the Court of Appeals seeking to annul and set aside (a) the order
issued by the trial court on June 14, 1989, setting aside the order dated April 28,
1989, and (b) the order of August 9, 1989, denying petitioner's motion for
reconsideration of the order of June 14, 1989. In due course the petition was
denied for lack of merit by the appellate court in a decision dated January 26,
1990. 2 A motion for reconsideration thereof filed by petitioner was denied on
August 10, 1990. LexLib

Thus, the herein petition for review on certiorari filed with this Court. Six errors
are alleged to have been committed by the appellatecourt which may be
synthesized into the singular issue of whether or not the
appellate court committed a grave abuse of discretion in rendering its questioned
decision and resolution.
The petition is devoid of merit.
The well-known rule is that the matter of issuance of a writ of preliminary
injunction is addressed to the sound judicial discretion of the trial court and its
action shall not be disturbed on appeal unless it is demonstrated that it acted
without jurisdiction or in excess ofjurisdiction or otherwise, in grave abuse of its
discretion. By the same token the court that issued such a preliminary relief may
recall or dissolve the writ as the circumstances may warrant.
To the mind of the Court the following circumstances militate against the
maintenance of the writ of preliminary injunction sought by petitioner:
1. No mayor's permit had been secured. While it is true that the
matter of determining whether there is a pollution of the environment that
requires control if not prohibition of the operation of a business is
essentially addressed to the then National Pollution Control
Commission of the Ministry of Human Settlements, now the
Environmental Management Bureau of the Department of Environment
and Natural Resources, it must be recognized that the mayor of a town
has as much responsibility to protect its inhabitants from pollution, and
by virtue of his police power, he may deny the application for a permit to
operate a business or otherwise close the same unless appropriate
measures are taken to control and/or avoid injury to the health of the
residents of the community from the emissions in the operation of the
business. LexLib

2. The Acting Mayor, in a letter of February 16, 1989, called the

attention of petitioner to the pollution emitted by the fumes ofits plant
whose offensive odor "not only pollute the air in the locality but also
affect the health of the residents in the area," so that petitioner was
ordered to stop its operation until further orders and it was required to
bring the following:
(1) Building permit;
(2) Mayor's permit; and
(3) Region III-Department of Environment and Natural Resources Anti-
Pollution permit. 3
3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria, Bulacan,
directed to the Provincial Governor through channels. 4 The alleged NBI
finding that some of the signatures in the four-page petition were written
by one person, 5 appears to be true in some instances, (particularly as
among members of the same family), but on the whole the many
signatures appear to be written by different persons. The
certification of the barrio captain of said barrio that he has not received
any complaint on the matter 6 must be because the complaint was sent
directly to the Governor through the Acting Mayor.
4. The closure order of the Acting Mayor was issued only after an
investigation was made by Marivic Guina who in her report ofDecember
8, 1988 observed that the fumes emitted by the plant of petitioner goes
directly to the surrounding houses and that no proper air pollution device
has been installed. 7
 5. Petitioner failed to produce a building permit from the
municipality of Sta. Maria, but instead presented a building permit issued
by an official of Makati on March 6, 1987. 8
6. While petitioner was able to present a temporary permit to operate by
the then National Pollution Control Commission on December 15, 1987,
the permit was good only up to May 25, 1988. 9 Petitioner had not
exerted any effort to extend or validate its permit much less to install any
device to control the pollution and prevent any hazard to the
health of the residents of the community.

All these factors justify the dissolution of the writ of preliminary injunction by the
trial court and the appellate court correctly upheld the action of the lower court.
Petitioner takes note of the plea of petitioner focusing on its huge investment in
this dollar-earning industry. It must be stressed however, that concomitant with
the need to promote investment and contribute to the growth of the economy is
the equally essential imperative of protecting the health, nay the very lives of the
people, from the deleterious effect of the pollution of the environment. cdphil

WHEREFORE, the petition is DENIED, with costs against petitioner.

SO ORDERED.
Narvasa, Cruz, Grio-Aquino and Medialdea, JJ., concur.
(Technology Developers, Inc. v. Court of Appeals, G.R. No. 94759, [January 21,
|||

1991], 271 PHIL 148-154)

 SECOND DIVISION

[G.R. No. 74816. March 17, 1987.]

ERNESTO R. RODRIGUEZ, JR., ERNESTO LL. RODRIGUEZ III,

SACHA DEL ROSARIO, JOSE P. GENITO, ZENAIDA
Z.RODRIGUEZ, and ENECERIO
MONDIA, petitioners, vs. INTERMEDIATE APPELLATE COURT
and DAYTONA CONSTRUCTION & DEVELOPMENT
CORPORATION, respondents.

Pelaez, Adriano & Gregorio Law Office for petitioners.

Balgos & Perez Law Office for respondents.

DECISION

PARAS, J : p

Before Us is a petition to review by certiorari 1) respondent court's decision which

sets aside the order of default rendered by the trialcourt and 2)
respondent court's resolution dated April 18, 1986 denying petitioners' (plaintiffs-
appellees' therein) motion for extension of time to file motion for reconsideration
of its decision. 1
The antecedent facts of the case are as follows: prLL

Plaintiffs (petitioners herein) filed on December 16, 1980, an action for

abatement of a public nuisance with damages against defendant (private
respondent herein). After being granted four (4) extensions of time to file an
answer, defendant moved to dismiss the complaint on February 27, 1981 upon
the ground that the lower court has no jurisdiction to hear the instant case and for
lack of cause of action. However, the motion was denied by the court on April 3,
1981, a copy of which decision was received by the defendant on April 23, 1981.
On May 5, 1981 defendant filed a motion for reconsideration which motion was
denied on July 7, 1981.
Instead of filing an answer, petitioner filed with Us in G.R. No. 57593, Daytona
Construction & Development Corporation vs. Rodriguez, et al. a motion for
extension of time to file a petition for review, but it never filed one, prompting Us
to issue a resolution dated October 5, 1981 informing the parties and the
trial court that no petition for review was filed within the period that expired on
August 15, 1981.
Upon motion of plaintiffs, the court declared the defendant in default on
November 4, 1981, and authorized the plaintiffs to present evidence ex-parte.
Upon learning of the said order, the defendant on November 9, 1981 filed a
motion to set aside the order of default and a motion to admit answer with
counterclaim which motions were denied by the lower court in an order dated
November 23, 1981.
On June 30, 1982, the court a quo rendered judgment for the plaintiffs and
against defendant, its dispositive portion reading as follows:
"WHEREFORE, judgment is hereby rendered as follows:
1. Declaring the operation of the cement batching plant of the defendant
corporation as a nuisance and ordering its permanent closure;
2. Ordering the defendant to pay plaintiff Ernesto Rodriguez, Jr. the
amount of P250,000.00 as moral damages and the amount of P5,000.00
as nominal damages;
3. Ordering the defendant to pay plaintiff Ernesto Ll. Rodriguez III the
amount of P200,000.00 as actual damages, the amount of P500,000.00
as moral damages and the amount of P5,000.00 as nominal damages;
4. Ordering the defendant to pay plaintiff Sacha del Rosario the amount
of P20,000.00 as actual damages, the amount of P50,000.00 as moral
damages and the amount of P5,000.00 as nominal damages;
5. Ordering the defendant to pay plaintiff Zenaida Z. Rodriguez the
amount of P100,000.00 as actual damages, the amount of P100,000.00
as moral damages and the amount of P5,000.00 as nominal damages;
and
6. Ordering the defendant to pay the plaintiffs the amount of P50,000.00
as attorney's fees, plus the costs of suit.
"SO ORDERED." (pp. 63-64, Record on Appeal)
In an order dated July 9, 1982, the trial court upon motion of plaintiffs granted
execution pending appeal it indeed appearing as alleged in the motion that the
continued operation of the cement batching plant of the defendant poses a "great
menace to the neighborhood, both in point of health and property."
On July 23, 1982, defendant filed a petition for relief which was however denied
by the lower court. On July 29, 1982, defendant filed a petition for injunction with
the Intermediate Appellate Court which found the petition
unmeritorious. 2 The appellate courtpromulgated on October 5, 1983, a decision
denying due course to defendant's petition.
Its motion for reconsideration having been denied by the Appellate Court,
defendant went on appeal by certiorari to the SupremeCourt (G.R. No. 66097)
which, after the submission of plaintiffs' comment and defendant's reply thereto,
denied its petition for lack of merit.
The petition for injunction having been denied by both the IAC and this Court,
defendant pursued the remedy of appeal in respondent IAC, assigning the
following errors.
"I. THE TRIAL COURT ERRED WHEN IT DECLARED APPELLANT IN
DEFAULT DESPITE THE FACT THAT ITS FAILURE TO FILE ITS
ANSWER ON TIME WAS DUE SOLELY TO THE NEGLIGENCE OF ITS
COUNSEL AND DESPITE THE FACT THAT THE MOTION TO
DISMISS THAT IT HAD FILED COULD HAVE VERY WELL STOOD AS
THE ANSWER OF THE APPELLANT.
"II. THE TRIAL COURT ERRED WHEN IT ASSUMED JURISDICTION
OVER THE CASE AND WHEN IT RENDERED JUDGMENT BY
DEFAULT AGAINST THE APPELLANT ON GROUNDS AND/OR BASIS
NOT ALLEGED IN THE COMPLAINT FILED AGAINST THE
APPELLANT.
"III. THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW RELIEF
FROM JUDGMENT IN THE FACE OF THE REASONS PRESENTED
TO IT AS BASIS FOR SUCH RELIEF.
"IV. THE TRIAL COURT ERRED WHEN DESPITE THE APPEAL
HAVING BEEN DULY PERFECTED, IT DETAINED THE CASE WITH IT
AND THEREAFTER, ISSUED AN ALIAS WRIT OF EXECUTION
PENDING APPEAL WITHOUT APPROPRIATE PRIOR NOTICE TO
THE APPELLANT." (pp. 1-2, Appellant's Brief)
On March 21, 1986, respondent court promulgated its decision, the decretal
portion of which is as follows:cdphil

"WHEREFORE, the Decision appealed from is hereby reversed and set

aside and another one entered, remanding the case to thecourt of origin
for further proceedings and thereafter, to render judgment accordingly."
"No pronouncement as to costs."
Notice of respondent Court's decision was received by plaintiffs-appellees thru
counsel on April 3, 1986. Plaintiffs filed on April 15, 1986 a motion for extension
of 30 days from April 18, 1986 or up to May 18, 1986 to file a motion for
reconsideration. However, on May 10, 1986, they filed a 24-page motion for
reconsideration.
Meanwhile, on April 23, 1986, defendant's opposition to the motion for extension
and counter-motion to enter final judgment were received by plaintiffs. Plaintiffs
countered with a reply filed April 29, 1986. (Annex "C-2") Plaintiffs' counsel was
surprised to receive on April 24, 1986, respondent Court's resolution dated April
18, 1986, denying the motion for extension. Plaintiffs requested
respondentCourt to treat their aforesaid reply filed on April 29, 1986 as a motion
for reconsideration of the said resolution of April 18, 1986, received by them on
April 21, 1986, the request being contained in their opposition dated May 22,
1986, to defendant-appellant's motion to strike out the said opposition attached
thereto as Annex "C-3." Neither the motion for reconsideration (converted from
the reply filed on April 29, 1986) nor the motion for reconsideration of the
decision itself was acted upon by respondent court.
Hence this petition to review, petitioners alleging that "Respondent court's
challenged resolution purporting to deny appellees' motion for extension of time
to file a motion for reconsideration is a nullity because the decision in
Habaluyas v. Japson case, 3 solely relied on by the said resolution has been
made by the Supreme Court to operate prospectively and thereby rendered
inapplicable to parties situated as petitioners are, in order precisely to spare them
from unfair and unjust deprivation of their right to appeal."
In Our resolution, promulgated May 30, 1986 in the Habaluyas case itself (G.R.
No. 70895), We set aside the original judgment therein, thus:
"However, the law and the Rules of Court do not expressly prohibit the
filing of a motion for extension of time to file a motion for reconsideration
of a final order or judgment.
"In the case of Gibbs vs. Court of First Instance (80 Phil. 160),
the Court dismissed the petition for certiorari and ruled that the failure of
defendant's attorney to file the petition to set aside the judgment within
the reglementary period was due to excusable neglect, and,
consequently, the record on appeal was allowed. The Court did not rule
that the motion for extension of time to file a motion for new trial or
reconsideration could not be granted.
"In the case of Roque vs. Gunigundo (Administrative Case No.
1684, March 30,1979, 89 SCRA 178), a division of the Court cited the
Gibbs decision to support a statement that a motion to extend the
reglementary period for filing the motion for reconsideration is not
authorized or is not in order.
"The Intermediate Appellate Court 4 is sharply divided on this issue.
Appeals have been dismissed on the basis of the original decision in this
case.
"After considering the able arguments of counsels for petitioners and
respondents, the Court resolved that the interest of justicewould be
better served if the ruling in the original decision were applied
prospectively from the time herein stated. The reason is that it would be
unfair to deprive parties of their right to appeal simply because they
 availed themselves of a procedure which was not expressly prohibited or
allowed by the law or the Rules. . . ." (pp. 3-4; Resolution dated May 30,
1986 in G.R. No. 70895; emphasis supplied).
This Court further elucidated:
"1). Beginning one month after the promulgation of this Resolution, the
rule shall be strictly enforced that no motion for extension of time to file a
motion for new trial or reconsideration may be filed with the Metropolitan
or Municipal Trial Courts, the Regional Trial Courts, and
the Intermediate Appellate Court. Such a motion may be filed only in
cases pending with the SupremeCourt as the court of last resort, which
may in its sound discretion either grant or deny the extension
requested." (p. 4, emphasis supplied)

The above new rules are made effective no earlier than June 30, 1986. In the
instant case, respondent Court's decision was received by plaintiffs on April 3,
1986. Plaintiffs or petitioners herein filed on April 15, 1986 a motion for extension
of 30 days from April 18, 1986 or up to May 18, 1986 to file a motion for
reconsideration. On May 10, 1986, plaintiffs filed their motion for reconsideration.
Plaintiffs' motion for extension of time was not intended for delay but upon
showing of good cause, to wit: "for lack of material time due to heavy pressure of
work on the part of petitioners' counsel presently taking charge thereof, what is
more the counsel handling this case was doing so for the first time in substitution
of Atty. Emmanuel Pelaez, who was recently appointed Philippine Ambassador
to the U.S."
It is clear therefore that petitioners' motion was based on good cause and was
filed opportunely making the act of respondent Courtunwarranted in denying
petitioners' motion for extension of time to file its motion for reconsideration. llcd

Another important issue raised by the petitioners is that the "subject decision
which purports to set aside the order of default rendered by the trial court is a
nullity because respondent court arbitrarily ignored in grave abuse of discretion
amounting to lack of jurisdiction 1) the conclusive effect of the trial court's final
and unappealed order denying defendant's motion to set aside the default order,"
and 2) the res judicata effect of the appellate court's final judgment in the
injunction case aforementioned upholding the trialcourt's order granting execution
of its judgment pending appeal and, necessarily, the default order as well 3) the
law of the case effect of the appellate court's express ruling in the said injunction
case sustaining the default order.
Petitioners' contentions merit our consideration.
It has been Our consistent ruling that a default order, being interlocutory, is not
appealable but an order denying a motion or petition to set aside an order of
default is not merely interlocutory but final and therefore immediately
appealable. 5
Since the trial court's order of November 13, 1981, denying defendant's motion to
set aside the order of default was appealable but was not appealed by
defendant, the necessary conclusion is that the default order became final.
Clearly therefore, respondent Courtcommitted a grave abuse of discretion in
disregarding the finality of the default order.
The validity and finality of the default order was upheld by the judgment of
the Appellate Court in the injunction case (which passed upon the merits of the
issuance of an order of execution pending appeal) by virtue of the principle of res
judicata and the doctrine re the law of the case.
There is no question that there were good reasons for the trial court to issue the
order of execution pending appeal. The order categorically stated that there was
a need for the closure and stoppage of the operation of defendant's (Daytona
Construction) cement batching plant because it posed "a great menace to the
neighborhood both in point of health and property." The trial court thus stated:
"From the uncontroverted evidence presented by the plaintiffs, there is
hardly any question that the cement dust coming from the batching plant
of the defendant corporation is injurious to the health of the plaintiffs and
other residents in the area. The noise, the vibration, the smoke and the
odor generated by the day and night operation of the plant must indeed
be causing them serious discomfort and untold miseries. Its operation
therefore violates certain rights of the plaintiffs and causes them
damage. It is thus a nuisance and its abatement justified." (Decision,
p. 5; p. 90, Rollo).
after taking into consideration evidence presented by plaintiffs (petitioners
herein) as follows:
"The evidence shows that the defendant is a domestic corporation duly
organized and existing under the laws of the Philippines with business
address of 252 Don Mariano Marcos Avenue (actually South
Zuzuarregui Avenue), Quezon City. It was issued by the Quezon City
government a business permit (Exhibit B) for the manufacture of road
and building concrete materials such as concrete aggregates, with
cement batching plant. Among the conditions set forth in the permit are
that the said batching plant shall (1) institute measures to prevent dust
emission during the manual charging of cement from bags to the
receiving hopper of the bucket elevator of the batching plant; (2) remove
all sediment deposit in the settling of tank for process water and proper
maintenance should be observed at all times. While the original permit
issued to the defendant stated that its operation at the place shall `not
(be) beyond Dec. 31, 1979' (Exhibit B-2), it was somehow allowed to
operate way beyond said period.
"Plaintiff Ernesto Ll. Rodriguez III testified that he has three parcels of
residential lots adjacent to the Daytona compound. He informed
the Court that his property, with an area of 8,892 square meters has
been over-run by effluence from the cement batching plant of the
defendant. The sediment settled on the lots and all forms of vegetation
have died as a result, and the land tremendously diminished in value.
His three lots are located in a prime residential zone and each square
meter in the area is easily valued at P500.00. While he would like to sell
at least a part of his property, he finds no buyer because of its condition.
It would cost him no less than P250,000.00 to be able to repair the
damage done to his property, and since its present condition has been
existing during the last five years, he claimed that the interest on his loss
would be about P5,000.00. He has agreed to his counsel's fee of
P200,000.00. Zenaida Rodriguez testified that she owns a lot with an
area of 1,500 square meters. Two thirds of this area has been damaged
by the cement dust, emanating from the defendant's cement batching
plant. The continuous flow of cement dust into her property affected her
deep well, their source of drinking water, and most of their fruit-bearing
and ornamental trees dried up. She also said that she has had sleepless
nights and became nervous as a result of the batching plant operation.
Even her previous pedigreed poodles have been afflicted by all sorts of
illnesses, many of them dying in the process. She claimed to have
sustained damages amounting to P370,000.00.
"Sacha del Rosario testified that her house has to close its windows
most of the time because of the dust pollution and her precious plants
have been destroyed by the cement powder coming from the constant
traffic of trucks and other vehicles carrying the product of the batching
plant passing through her area. She claims damages amounting to more
than P100,000.00.
"A chemical engineer, Alexander Cruz, said that the effluence deposited
on the properties of Ernesto Ll. Rodriguez III and ZenaidaRodriguez has
a very high PH, 11.8, and the soil is highly alkaline and cannot support
plant life; that pollution coming from the batching plant can cause
stomach disorder and skin problems; that the place of Ernesto
Ll. Rodriguez III is bare of grass and the trees are dying, (Exhibits J, J-1
and J-2) and that there is also a high degree of calcium on the property
in question.
"Witness Guido L. Quiban, a civil engineer, testified that on the basis of
his examination of the property of Rodriguez III affected by the pollution,
it would cost at least P250,000.00 for the excavation filling, concreting of
canal and rental of equipment to repair it or restore it to its status quo
ante.
"Lawyer Ernesto R. Rodriguez, Jr., the 70-year old father of both Ernesto
III and Zenaida Z. Rodriguez, submitted a medical certificate that he had
recently been taken ill with acute bronchial asthma, hypertension and
atherosclerotic heart disease. (Exhibits L, L-1 to L-4). His physician, a
specialist graduate from the University of London and connected with
various hospitals in Manila, advised him against exposure to
environmental allegens, specifically cement dust and pollution. He also
submitted as exhibits various newspaper clippings (Exhibit M) and
excerpts from a book (Exhibits N and N-1) showing that pollution can
irritate the eye, sear lungs and destroy vegetation, raise blood pressure,
increase cholesterol levels, interfere with sleep, cause ulcer, trigger
heart attacks and the like; that it is the common denominator of
respiratory diseases, especially asthma chronic bronchitis, bronchial
asthma and emphysema; and that polluted air can develop abnormalities
in lung function.
"Dr. Raul I. del Rosario, a neighboring physician, testified that he had
treated several patients who traced their sickness to the pollution caused
by defendant Daytona batching plant. He said that cement dust
produces broncho-pulmonary obstructive diseases, broncho fibriotic
lesions which may produce cardio pulmonary complications, and the
people living in the neighborhood of the batching plant are the most
susceptible to these diseases. He reported many cases of bronchial
asthma in both children and adult who live in the vicinity of the cement
batching plant and these cases have been intermittently admitted and
discharged from the Quirino Labor Hospital where he presently works as
a resident physician. He had intended to open a medical clinic at his
residence but he could not do so because the washings from the cement
mixers are dumped on the access road in front of his house and when
these washings are dried up they pollute the neighborhood, rendering
his intended medical clinic unfit and impractical for the treatment of
patients, particularly those suffering from respiratory ailments.
"Another lawyer, Eliseo Alampay, Jr., who likewise resides a few meters
away from the site of the Daytona batching plant, testified that the said
plant is certainly injurious to the health; that the cement dust are agents
of lung ailments, impair the growth of plants and even kill the birds in
their cages; that it is a demonstrable nuisance because its uncontrolled
engine noise and nightlong pounding prevent the neighborhood from
being able to sleep soundly and peacefully. He told the court that there
was a time when he felt like organizing the whole neighborhood into a
demolition team to forcibly dismantle the entire Daytona plant because
`the authorities concerned apparently have chosen to close their eyes
and leave us to our miserable plight.' He said that the homes in the
community all look dirty and dusty because of the pollution that the
batching plant of the defendant causes." (Decision in Injunction Case,
AC-G.R. No. 14602-SP, pp. 10-14).
Anent the default order, the appellate court in the injunction case said:
"From the foregoing, it appears that petitioner was recreant in failing to
file an answer after respondent judge denied its motion to dismiss the
complaint. The motion to dismiss was denied in the order of the
lower court under date of April 3, 1981, a copy of which was received by
petitioner on April 23, 1981. A motion for reconsideration of the order of
denial filed by petitioner on May 7, 1981 was denied by said court on
July 7, 1981. Instead of filing an answer promptly, petitioner filed with the
Supreme Court a motion for extension of time to file a petition for
review, but it never filed one, prompting the Supreme Court to issue
a resolutiondated October 5, 1981 informing the parties that no petition
for review was filed within the period that expired on August 15, 1981.
Inspite of the Supreme Court's resolution, petitioner still failed to file any
answer or pleading to arrest the running of the prescriptive period. It was
only on July 23, 1982, when petitioner filed its Petition for Relief which
was nine (9) months after the Supreme Court's resolution was issued.
Petitioner's assertion in its Petition for Relief that the failure to file the
answer was caused by `the unforseen sickness of its corporate secretary
who has custody of the records necessary for the preparation of its
defense' cannot be taken without much doubt and hesitation. Petitioner
did not even point out who was the supposed corporate secretary or
explain why the records were in the possession of the corporate
secretary instead of the counsel handling the case." (Decision in
Injunction case, p. 16; emphasis supplied)
With reference to defendant's allegation that it thought that the period within
which to answer (after its motion to dismiss had been denied) had been
suspended by its having filed a petition for review before the Supreme Court,
same is without merit. The circumstances of the case point to a deliberate desire
to delay: the corporation, governed as it is by knowledgeable business
executives, should have taken steps to prevent its being declared in default. The
corporation waited six (6) months before verifying the status of the case: in the
meantime it had been declared in default, a judgment by default had been
rendered against it, execution was already pending before it woke up to file the
case at hand. Cdpr

We agree with Justice Luis A. Javellana in his concurring opinion in the injunction
case before the appellate court, thus:
"Petitioner's conduct here appears to me to be tainted with fraud and
intended simply to delay the disposition of the case. When its motion to
dismiss the complaint was denied, and its motion for reconsideration of
that denial was, likewise, denied, it manifested its intention to elevate
these orders to the Supreme Court on a petition for review. Yet, it did
nothing to this end. The purpose of the ploy is obvious. Once it had
announced its intention to go to the Supreme Court it effectively
 suspended the proceedings in the trial court, or, at least, that was the
effect. This enabled it to continue with its operations and it would have
done so indefinitely if it had not been declared in default and private
respondents allowed to present their evidence. It is quite apparent that
petitioner really had no intention of elevating the case to the
Supreme Court, otherwise, it would not have allowed the extended
period given to it by the Supreme Court to lapse without filing the
petition. Or, if it was in good faith, then, it should have in formed the
trialcourt that it was no longer pursuing its remedy in the Supreme Court,
after it had decided that it was no longer availing of such remedy.
Instead, it concealed this fact from the trial court and the adverse party,
and allowed matters to take their course. It was not until it received the
adverse decision that it frantically sought to set things right. I do not think
that petitioner deserves any consideration for trifling with the
administration of justice." (pp. 3-4; emphasis supplied)
WHEREFORE, the assailed decision and resolution are hereby SET ASIDE, and
a new judgment is hereby rendered REINSTATING the decision of the
trial court with the modification that all awards for nominal damages are hereby
eliminated. Costs against private respondent.
SO ORDERED.
Fernan, Padilla and Cortes, JJ., concur.
Bidin, J., took no part. See footnote no. 1.

Se
(Rodriguez, Jr. v. Intermediate Appellate Court, G.R. No. 74816, [March 17,
|||

1987], 232 PHIL 562-575)

 [G.R. No. 158290. October 23, 2006.]

HILARION M. HENARES, JR., VICTOR C. AGUSTIN, ALFREDO

L. HENARES, DANIEL L. HENARES, ENRIQUE
BELOHENARES, and CRISTINA
BELO HENARES, petitioners, vs. LAND TRANSPORTATION FR
ANCHISING AND REGULATORYBOARD and DEPARTMENT
OF TRANSPORTATION AND COMMUNICATIONS, respondents.

RESOLUTION

QUISUMBING, J : p

Petitioners challenge this Court to issue a writ of mandamus commanding

respondents Land Transportation Franchising andRegulatory Board (LTFRB) and
the Department of Transportation and Communications (DOTC) to require public
utility vehicles (PUVs) to use compressed natural gas (CNG) as alternative fuel.
Citing statistics from the Metro Manila Transportation and Traffic Situation Study
of 1996, 1 the Environmental Management Bureau (EMB) of the National Capital
Region, 2 a study of the Asian Development Bank, 3 the Manila
Observatory 4 and the Department of Environment and Natural
Resources 5(DENR) on the high growth and low turnover in vehicle ownership in
the Philippines, including diesel-powered vehicles, two-stroke engine powered
motorcycles and their concomitant emission of air pollutants, petitioners attempt
to present a compelling case for judicial action against the bane of air pollution
and related environmental hazards.
Petitioners allege that the particulate matters (PM) complex mixtures of dust,
dirt, smoke, and liquid droplets, varying in sizes and compositions emitted into
the air from various engine combustions have caused detrimental effects on
health, productivity, infrastructure and the overall quality of life. Petitioners
particularly cite the effects of certain fuel emissions from engine combustion
when these react to other pollutants. For instance, petitioners aver, with
hydrocarbons, oxide of nitrogen (NO ) creates smog; with sulfur dioxide, it
x

creates acid rain; and with ammonia, moisture and other compounds, it reacts to
form nitric acid and harmful nitrates. Fuel emissions also cause retardation and
leaf bleaching in plants. According to petitioner, another emission, carbon
monoxide (CO), when not completely burned but emitted into the atmosphere
and then inhaled can disrupt the necessary oxygen in blood. With prolonged
exposure, CO affects the nervous system and can be lethal to people with weak
hearts. 6
Petitioners add that although much of the new power generated in the country
will use natural gas while a number of oil and coal-fired fuel stations are being
phased-out, still with the projected doubling of power generation over the next 10
years, and with the continuing high demand for motor vehicles, the energy and
transport sectors are likely to remain the major sources of harmful emissions.
Petitioners refer us to the study of the Philippine Environment Monitor 2002 7,
stating that in four of the country's major cities, Metro Manila, Davao, Cebu and
Baguio, the exposure to PM10, a finer PM which can penetrate deep into the
lungs causing serious health problems, is estimated at over US$430
million. 8 The study also reports that the emissions of PMs have caused the
following:
Over 2,000 people die prematurely. This loss is valued at about
US$140 million.
Over 9,000 people suffer from chronic bronchitis, which is valued at
about US$120 million.
Nearly 51 million cases of respiratory symptom days in Metro Manila
(averaging twice a year in Davao and Cebu, and five to six times
in Metro Manila and Baguio), costs about US$170 million. This is
a 70 percent increase, over a decade, when compared with the
findings of a similar study done in 1992 for Metro Manila, which
reported 33 million cases. 9
Petitioners likewise cite the University of the Philippines' studies in 1990-91 and
1994 showing that vehicular emissions in Metro Manila have resulted to the
prevalence of chronic obstructive pulmonary diseases (COPD); that pulmonary
tuberculosis is highest among jeepney drivers; and there is a 4.8 to 27.5 percent
prevalence of respiratory symptoms among school children and 15.8 to
40.6 percent among child vendors. The studies also revealed that the children in
Metro Manila showed more compromised pulmonary function than their rural
counterparts. Petitioners infer that these are mostly due to the emissions of
PUVs. TEHIaA

To counter the aforementioned detrimental effects of emissions from PUVs,

petitioners propose the use of CNG. According to petitioners, CNG is a natural
gas comprised mostly of methane which although containing small amounts of
propane and butane, 10 is colorless and odorless and considered the cleanest
fossil fuel because it produces much less pollutants than coal and petroleum;
produces up to 90 percent less CO compared to gasoline and diesel fuel;
reduces NO emissions by 50 percent and cuts hydrocarbon emissions by half;
x

emits 60 percent less PMs; and releases virtually no sulfur dioxide. Although,
according to petitioners, the only drawback of CNG is that it produces more
methane, one of the gases blamed for global warming. 11
Asserting their right to clean air, petitioners contend that the bases for their
petition for a writ of mandamus to order the LTFRB to require PUVs to use CNG
as an alternative fuel, lie in Section 16, 12 Article II of the 1987 Constitution, our
ruling in Oposa v. Factoran, Jr.,13 and Section 4 14 of Republic Act No.
8749 otherwise known as the "Philippine Clean Air Act of 1999."
Meantime, following a subsequent motion, the Court granted petitioners' motion
to implead the Department of Transportation and Communications (DOTC) as
additional respondent.
In his Comment for respondents LTFRB and DOTC, the Solicitor General, cites
Section 3, Rule 65 of the Revised Rules of Court and explains that the writ
of mandamus is not the correct remedy since the writ may be issued only to
command a tribunal, corporation,board or person to do an act that is required to
be done, when he or it unlawfully neglects the performance of an act which the
law specifically enjoins as a duty resulting from an office, trust or station, or
unlawfully excludes another from the use and enjoyment of a right or office to
which such other is entitled, there being no other plain, speedy and adequate
remedy in the ordinary course of law. 15Further citing existing jurisprudence, the
Solicitor General explains that in contrast to a discretionary act, a ministerial act,
which amandamus is, is one in which an officer or tribunal performs in a given
state of facts, in a prescribed manner, in obedience to a mandate of legal
authority, without regard to or the exercise of his own judgment upon the
propriety or impropriety of an act done.
The Solicitor General also notes that nothing in Rep. Act No. 8749 that
petitioners invoke, prohibits the use of gasoline and diesel by owners of motor
vehicles. Sadly too, according to the Solicitor General, Rep. Act No. 8749 does
not even mention the existence of CNG as alternative fuel and avers that unless
this law is amended to provide CNG as alternative fuel for PUVs, the
respondents cannot propose that PUVs use CNG as alternative fuel.
The Solicitor General also adds that it is the DENR that is tasked to
implement Rep. Act No. 8749 and not the LTFRB nor the DOTC. Moreover, he
says, it is the Department of Energy (DOE), under Section 26 16 of Rep. Act No.
8749, that is required to set the specifications for all types of fuel and fuel-related
products to improve fuel compositions for improved efficiency and reduced
emissions. He adds that under Section 21 17 of the cited Republic Act, the DOTC
is limited to implementing the emission standards for motor vehicles, and the
herein respondents cannot alter, change or modify the emission standards. The
Solicitor General opines that the Court should declare the instant petition
for mandamus without merit.
Petitioners, in their Reply, insist that the respondents possess the administrative
and regulatory powers to implement measures in accordance with the policies
and principles mandated by Rep. Act No. 8749, specifically Section 2 18 and
Section 21. 19 Petitioners state that under these laws and with all the available
information provided by the DOE on the benefits of CNG, respondents cannot
ignore the existence of CNG, and their failure to recognize CNG and compel its
use by PUVs as alternative fuel while air pollution brought about by the
emissions of gasoline and diesel endanger the environment and the people, is
tantamount to neglect in the performance of a duty which the law enjoins.
Lastly, petitioners aver that other than the writ applied for, they have no other
plain, speedy and adequate remedy in the ordinary course of law. Petitioners
insist that the writ in fact should be issued pursuant to the very same Section 3,
Rule 65 of the Revised Rules of Court that the Solicitor General invokes.
In their Memorandum, petitioners phrase the issues before us as follows:
I. WHETHER OR NOT THE PETITIONERS HAVE THE PERSONALITY
TO BRING THE PRESENT ACTION
II. WHETHER OR NOT THE PRESENT ACTION IS SUPPORTED BY
LAW
III. WHETHER OR NOT THE RESPONDENT IS THE AGENCY
RESPONSIBLE TO IMPLEMENT THE SUGGESTED
ALTERNATIVE OF REQUIRING PUBLIC UTILITY VEHICLES TO
USE COMPRESSED NATURAL GAS (CNG) HETDAC

IV. WHETHER OR NOT THE RESPONDENT CAN BE COMPELLED

TO REQUIRE PUBLIC UTILITY VEHICLES TO USE
COMPRESSED NATURAL GAS THROUGH A WRIT OF
MANDAMUS 20
Briefly put, the issues are two-fold. First, Do petitioners have legal personality to
bring this petition before us? Second, Shouldmandamus issue against
respondents to compel PUVs to use CNG as alternative fuel?
According to petitioners, Section 16, 21 Article II of the 1987 Constitution is the
policy statement that bestows on the people the right to breathe clean air in a
healthy environment. This policy is enunciated in Oposa. 22 The implementation
of this policy is articulated inRep. Act No. 8749. These, according to petitioners,
are the bases for their standing to file the instant petition. They aver that when
there is an omission by the government to safeguard a right, in this case their
right to clean air, then, the citizens can resort to and exhaust all remedies to
challenge this omission by the government. This, they say, is embodied in
Section 4 23 of Rep. Act No. 8749.

Petitioners insist that since it is the LTFRB and the DOTC that are the
government agencies clothed with power to regulate and control motor vehicles,
particularly PUVs, and with the same agencies' awareness and knowledge that
the PUVs emit dangerous levels of air pollutants, then, the responsibility to see
that these are curbed falls under respondents' functions and a writ
of mandamus should issue against them.
The Solicitor General, for his part, reiterates his position that the respondent
government agencies, the DOTC and the LTFRB, are not in a position to compel
the PUVs to use CNG as alternative fuel. The Solicitor General explains that the
function of the DOTC is limited to implementing the emission standards set forth
in Rep. Act No. 8749 and the said law only goes as far as setting the maximum
limit for the emission of vehicles, but it does not recognize CNG as alternative
engine fuel. The Solicitor General avers that the petition should be addressed to
Congress for it to come up with a policy that would compel the use of CNG as
alternative fuel.
Patently, this Court is being asked to resolve issues that are not only procedural.
Petitioners challenge this Court to decide if what petitioners propose could be
done through a less circuitous, speedy and unchartered course in an issue that
Chief Justice Hilario G. Davide, Jr. in his ponencia in
the Oposa case, 24 describes as "inter-generational responsibility" and "inter-
generational justice."
Now, as to petitioners' standing. There is no dispute that petitioners have
standing to bring their case before this Court. Even respondents do not question
their standing. This petition focuses on one fundamental legal right of petitioners,
their right to clean air. Moreover, as held previously, a party's standing before this
Court is a procedural technicality which may, in the exercise of the Court's
discretion, be set aside in view of the importance of the issue raised. We brush
aside this issue of technicality under the principle of the transcendental
importance to the public, especially so if these cases demand that they be settled
promptly.
Undeniably, the right to clean air not only is an issue of paramount importance to
petitioners for it concerns the air they breathe, but it is also impressed with public
interest. The consequences of the counter-productive and retrogressive effects of
a neglected environment due to emissions of motor vehicles immeasurably affect
the well-being of petitioners. On these considerations, the legal standing of the
petitioners deserves recognition.
Our next concern is whether the writ of mandamus is the proper remedy, and if
the writ could issue against respondents.
Under Section 3, Rule 65 of the Rules of Court, mandamus lies under any of the
following cases: (1) against any tribunal which unlawfully neglects the
performance of an act which the law specifically enjoins as a duty; (2) in case
any corporation, board or person unlawfully neglects the performance of an act
which the law enjoins as a duty resulting from an office, trust, or station; and (3)
in case any tribunal, corporation, board or person unlawfully excludes another
from the use and enjoyment of a right or office to which such other is legally
entitled; and there is no other plain, speedy, and adequate remedy in the
ordinary course of law.
In University of San Agustin, Inc. v. Court of Appeals, 25 we said,
. . . It is settled that mandamus is employed to compel the performance,
when refused, of a ministerial duty, this being its main objective. It does
not lie to require anyone to fulfill contractual obligations or to compel a
course of conduct, nor to control or review the exercise of discretion. On
the part of the petitioner, it is essential to the issuance of a writ
of mandamus that he should have a clear legal right to the thing
demanded and it must be the imperative duty of the respondent to
perform the act required. It never issues in doubtful cases. While it may
not be necessary that the duty be absolutely expressed, it must
however, be clear. The writ will not issue to compel an official to do
anything which is not his duty to do or which is his duty not to do, or give
to the applicant anything to which he is not entitled by law. The writ
neither confers powers nor imposes duties. It is simply a command to
exercise a power already possessed and to perform a duty already
imposed. (Emphasis supplied.)
In this petition the legal right which is sought to be recognized and enforced
hinges on a constitutional and a statutory policy already articulated in operational
terms, e.g. in Rep. Act No. 8749, the Philippine Clean Air Act of 1999. Paragraph
(a), Section 21 of the Act specifically provides that when PUVs are concerned,
the responsibility of implementing the policy falls on respondent DOTC. It
provides as follows:
SEC 21. Pollution from Motor Vehicles. a) The DOTC shall implement
the emission standards for motor vehicles set pursuant to and as
provided in this Act. To further improve the emission standards, the
Department [DENR] shall review, revise and publish the standards every
two (2) years, or as the need arises. It shall consider the maximum limits
for all major pollutants to ensure substantial improvement in air quality
for the health, safety and welfare of the general public.
Paragraph (b) states:
b) The Department [DENR] in collaboration with the DOTC, DTI and
LGUs, shall develop an action plan for the control and management
of air pollution from motor vehicles consistent with the Integrated Air
Quality Framework . . . . (Emphasis supplied.)
There is no dispute that under the Clean Air Act it is the DENR that is tasked to
set the emission standards for fuel use and the task of developing an action plan.
As far as motor vehicles are concerned, it devolves upon the DOTC and the line
agency whose mandate is to oversee that motor vehicles prepare an action plan
and implement the emission standards for motor vehicles, namely the LTFRB.
In Oposa 26 we said, the right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the environment. We also said, it is
clearly the duty of the responsible government agencies to advance the said
right.
Petitioners invoke the provisions of the Constitution and the Clean Air Act in their
prayer for issuance of a writ of mandamuscommanding the respondents to
require PUVs to use CNG as an alternative fuel. Although both are general
mandates that do not specifically enjoin the use of any kind of fuel, particularly
the use of CNG, there is an executive order implementing a program on the use
of CNG by public vehicles. Executive Order No. 290, entitled Implementing the
Natural Gas Vehicle Program for Public Transport (NGVPPT), took effect on
February 24, 2004. The program recognized, among others, natural gas as a
clean burning alternative fuel for vehicle which has the potential to produce
substantially lower pollutants; and the Malampaya Gas-to-Power Project as
representing the beginning of the natural gas industry of the Philippines.
Paragraph 1.2, Section 1 of E.O. No. 290 cites as one of its objectives, the use of
CNG as a clean alternative fuel for transport. Furthermore, one of the
components of the program is the development of CNG refueling stations and all
related facilities in strategic locations in the country to serve the needs of CNG-
powered PUVs. Section 3 ofE.O. No. 290, consistent with E.O. No. 66, series of
2002, designated the DOE as the lead agency (a) in developing the natural gas
industry of the country with the DENR, through the EMB and (b) in formulating
emission standards for CNG. Most significantly, par. 4.5, Section 4 tasks the
DOTC, working with the DOE, to develop an implementation plan for "a gradual
shift to CNG fuel utilization in PUVs and promote NGVs [natural gas vehicles] in
Metro Manila and Luzon through the issuance of directives/orders providing
preferential franchises in present day major routes and exclusive franchises to
NGVs in newly opened routes. . ." A thorough reading of the executive order
assures us that implementation for a cleaner environment is being addressed. To
a certain extent, the instant petition had been mooted by the issuance
of E.O. No. 290.
Regrettably, however, the plain, speedy and adequate remedy herein sought by
petitioners, i.e., a writ of mandamus commanding the respondents to require
PUVs to use CNG, is unavailing. Mandamus is available only to compel the doing
of an act specifically enjoined by law as a duty. Here, there is no law that
mandates the respondents LTFRB and the DOTC to order owners of motor
vehicles to use CNG. At most the LTFRB has been tasked by E.O. No. 290 in
par. 4.5 (ii), Section 4 "to grant preferential and exclusive Certificates of Public
Convenience (CPC) or franchises to operators of NGVs based on the results of
the DOTC surveys."
Further, mandamus will not generally lie from one branch of government to a
coordinate branch, for the obvious reason that neither is inferior to the
other. 27 The need for future changes in both legislation and its implementation
cannot be preempted by orders from this Court, especially when what is prayed
for is procedurally infirm. Besides, comity with and courtesy to a coequal branch
dictate that we give sufficient time and leeway for the coequal branches to
address by themselves the environmental problems raised in this petition.
In the same manner that we have associated the fundamental right to a balanced
and healthful ecology with the twin concepts of "inter-generational responsibility"
and "inter-generational justice" in Oposa, 28 where we upheld the right of future
Filipinos to prevent the destruction of the rainforests, so do we recognize, in this
petition, the right of petitioners and the future generation to clean air. InOposa we
said that if the right to a balanced and healthful ecology is now explicitly found
in the Constitution even if the right is "assumed to exist from the inception of
humankind,. . . it is because of the well-founded fear of its framers [of the
Constitution] that unless the rights to a balanced and healthful ecology and to
health are mandated as state policies by the Constitution itself, thereby
highlighting their continuing importance and imposing upon the state a solemn
obligation to preserve the first and protect and advance the second, the day
would not be too far when all else would be lost not only for the present
generation, but also for those to come. . ." 29

It is the firm belief of this Court that in this case, it is timely to reaffirm the
premium we have placed on the protection of the environment in the landmark
case of Oposa. Yet, as serious as the statistics are on air pollution, with the
present fuels deemed toxic as they are to the environment, as fatal as these
pollutants are to the health of the citizens, and urgently requiring resort to drastic
measures to reduce air pollutants emitted by motor vehicles, we must admit in
particular that petitioners are unable to pinpoint the law that imposes an
indubitable legal duty on respondents that will justify a grant of the writ
of mandamus compelling the use of CNG for public utility vehicles. It appears to
us that more properly, the legislature should provide first the specific statutory
remedy to the complex environmental problems bared by herein petitioners
before any judicial recourse by mandamus is taken.
WHEREFORE, the petition for the issuance of a writ of mandamus is
DISMISSED for lack of merit. cSCADE

SO ORDERED.
Carpio, Carpio Morales, Tinga and Velasco, Jr., JJ., concur.
 (Henares, Jr. v. Land Transportation Franchising and Regulatory Board, G.R.
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No. 158290, [October 23, 2006], 535 PHIL 835-849)