#1. SPOUSES SILVESTRE 0. PLAZA AND ELENA Y.

PLAZA, petitioners vs
GUILLERMO LUSTIVA, ELEODORA VDA. DE MARTINEZ AND VICKY SAYSON GOLOSENO, respondents.

THE FACTS:
On August 28, 1997, the CA ruled that among the Plaza siblings, namely: Aureliano, Emiliana, Vidal,
Marciano, and Barbara, Barbara was the owner of the subject agricultural land. The decision became
final and executory and Barbara's successors, respondents Guillermo Lustiva, Eleodora Vda. de Martinez
and Vicky Sayson Goloseno, have continued occupying the property.
On September 14, 1999, Vidals son and daughter-in-law, the petitioners, filed a Complaint for
Injunction, Damages, Attorneys Fees with Prayer for the Issuance of the Writ of Preliminary Injunction
and/or Temporary Restraining Order against the respondents and the City Government of Butuan with ,
the Regional Trial Court (RTC) of Butuan City, Branch 5.
They prayed that the respondents be enjoined from unlawfully and illegally threatening to take
possession of the subject property. According to the petitioners, they acquired the land from Virginia
Tuazon in 1997; Tuazon was the sole bidder and winner in a tax delinquency sale conducted by the City
of Butuan on December 27, 1996.
In their answer, the respondents pointed out that they were never delinquent in paying the land taxes
and were in fact not aware that their property had been offered for public auction. Moreover, Tuazon,
being a government employee, was disqualified to bid in the public auction, as stated in Section 89 of
the Local Government Code of 1991.
As Tuazons participation in the sale was void, she could have not transferred ownership to the
petitioners. Equally important, the petitioners merely falsified the property tax declaration by inserting
the name of the petitioners father, making him appear as a co-owner of the auctioned land. Armed with
the falsified tax declaration, the petitioners, as heirs of their father, fraudulently redeemed the land
from Tuazon. Nonetheless, there was nothing to redeem as the land was not sold. For these
irregularities, the petitioners had no right to the Writ of Preliminary Injunction and/or Temporary
Restraining Order prayed for against them.
THE RTCS RULING
In its December 14, 1999 order, the Regional Trial Court (RTC) of Butuan City, Branch 5, reconsidered its
earlier order, denied the prayer for a Writ of Preliminary Injunction filed by petitioners, and ordered that
the possession and occupation of the land be returned to the respondents. The RTC found that the
auction sale was tainted with irregularity as the bidder was a government employee disqualified in
accordance with Section 89 of the Local Government Code of 1991. The petitioners are not buyers in
good faith either. On the contrary, they were in bad faith for having falsified the tax declaration they
redeemed the property with.
THE CAS RULING
Through a petition for review on certiorari under Rule 65, the petitioners challenged the RTCs order
before the CA.
While the petition for review on certiorari was pending before the CA, the petitioners filed an action for
specific performance against the City Government of Butuan. According to the petitioners, they acquired
possession and ownership over the auctioned property when they redeemed it from Tuazon. The City
Government of Butuan must therefore issue them a certificate of sale.
In its October 24, 2005 decision,10 the CA affirmed the RTCs ruling, found the petitioners guilty of
forum shopping, dismissed the case, and referred the case to the Court and to the Integrated Bar of the
Philippines for investigation and institution of the appropriate administrative action. The CA, after legal
analysis, similarly concluded that for being disqualified to bid under Section 89 of the Local
Government Code of 1991, Tuazon never obtained ownership over the property; much less transmit
any proprietary rights to the petitioners. Clearly, the petitioners failed to establish any clear and
unmistakable right enforceable by the injunctive relief.
On April 6, 2006, the CA rejected the petitioners motion for reconsideration.
THE PARTIES ARGUMENTS
The petitioners filed the present petition for review on certiorari with this Court to challenge the CA
rulings. The petitioners maintain that they did not falsify the tax declaration in acquiring the auctioned
property. Moreover, assuming that Tuazon, the sole bidder, was indeed disqualified from participating
in the public auction, Section 18112 of the Local government code 0f 1991.
In its December 14, 1999 order, the Regional Trial Court (RTC) of Butuan City, Branch 5, reconsidered its
earlier order, denied the prayer for a Writ of Preliminary Injunction, and ordered that the possession
Government Code of 1991 finds application.
Applying the law, it is as if there was no bidder, for which the City Government of Butuan was to be
considered the purchaser of the land in auction. Therefore, when the petitioners bought the land, they
bought it directly from the purchaser - City Government of Butuan - and not from Tuazon, as redeemers.
Also, the respondents may not question the validity of the public auction for failing to deposit with the
court the amount required by Section 26713 of the Local Government Code of 1991.
Finally, the petitioners argue that they did not commit forum shopping, as the reliefs prayed for in the
present case and in the specific performance case are not the same. In the present case, they merely
impleaded the City Government of Butuan as a nominal party to pay for the value of the land only if
possession of the land was awarded to the respondents. On the other hand, the complaint for specific
performance prayed that the City Government of Butuan execute the necessary certificate of sale and
other relevant documents pertaining to the auction.
The respondents, for their part, reiterate the lower courts findings that there could have been no legal
redemption in favor of the petitioners as the highest bidder was disqualified from bidding. Moreover,
the CA correctly applied the law in finding the petitioners guilty of forum shopping. Most importantly,
the grant of preliminary injunction lies in the sound discretion of the court and the petitioners failed to
show proof that they are entitled to it.
Meanwhile, on August 8, 2013, the RTC dismissed the main action and ordered the petitioners to pay
the respondents attorneys fees and litigation expenses.
THE COURTS RULING
We resolve to deny the petition for lack of merit.
The petitioners may not raise factual issues. The petitioners maintain that they did not falsify the tax
declaration they reimbursed the property with. According to them, the document already existed in
1987, way before they acquired the land in 1997.
Contrary likewise to the lower courts finding, they did not purchase the land from Tuazon as
redemptioners; they directly bought the property from the City Government of Butuan.
These factual contests are not appropriate for a petition for review on certiorari under Rule 45. The
Court is not a trier of facts. The Court will not revisit, re-examine, and re-evaluate the evidence and the
factual conclusions arrived at by the lower courts. In the absence of compelling reasons, the Court will
not disturb the rule that factual findings of the lower tribunals are final and binding on this Court.

Sections 181 and 267 of the Local Government Code of 1991 are inapplicable; these provisions do not
apply to the present case
The petitioners may not invoke Section 18118 of the Local Government Code of 1991 to validate their
alleged title. The law authorizes the local government unit to purchase the auctioned property only in
instances where there is no bidder or the highest bid is xxx insufficient.
A disqualified bidder is not among the authorized grounds. The local government also never undertook
steps to purchase the property under Section 181 of the Local Government Code of 1991, presumably
because it knew the invoked provision does not apply.
Neither can the Court agree with the petitioners stance that the respondents defense the
petitioners defective title must fail for want of deposit to the court the amount required by Section
267 of the Local Government Code. The provision states:
Section 267. Action Assailing Validity of Tax Sale. - No court shall entertain any action assailing the validity or any sale at public auction of real
property or rights therein under this Title until the taxpayer shall have deposited with the court the amount for which the real property was sold,
together with interest of two percent (2%) per month from the date of sale to the time of the institution of the action. The amount so deposited
shall be paid to the purchaser at the auction sale if the deed is declared invalid but it shall be returned to the depositor if the action fails.
Neither shall any court declare a sale at public auction invalid by reason or irregularities or informalities in the proceedings unless the
substantive rights of the delinquent owner of the real property or the person having legal interest therein have been impaired.
A simple reading of the title readily reveals that the provision relates to actions for annulment of tax
sales. The section likewise makes use of terms entertain and institution to mean that the deposit
requirement applies only to initiatory actions assailing the validity of tax sales. The intent of the
provision to limit the deposit requirement to actions for annulment of tax sales led to the Courts ruling
in National Housing Authority v. Iloilo City, et al held that the deposit requirement is jurisdictional a
condition necessary for the court to entertain the action:
As is apparent from a reading of the foregoing provision, a deposit equivalent to the amount of the sale at public auction plus
two percent (2%) interest per month from the date of the sale to the time the court action is instituted is a condition a
prerequisite, to borrow the term used by the acknowledged father of the Local Government Code which must be satisfied
before the court can entertain any action assailing the validity of the public auction sale. The law, in plain and unequivocal
language, prevents the court from entertaining a suit unless a deposit is made. xxx. Otherwise stated, the deposit is a
jurisdictional requirement the nonpayment of which warrants the failure of the action.
Clearly, the deposit precondition is an ingenious legal device to guarantee the satisfaction of the tax
delinquency, with the local government unit keeping the payment on the bid price no matter the final
outcome of the suit to nullify the tax sale.20 The Court would later reiterate the jurisdictional nature of
the deposit in Wong v. City of Iloilo,and pronounce:
In this regard, National Housing Authority v. Iloilo City holds that the deposit required under Section 267 of the Local
Government Code is a jurisdictional requirement, the nonpayment of which warrants the dismissal of the action. Because
petitioners in this case did not make such deposit, the RTC never acquired jurisdiction over the complaints.
These rulings clearly render inapplicable the petitioners insistence that the respondents should have
made a deposit to the court. The suit filed by the petitioners was an action for injunction and damages;
the issue of nullity of the auction was raised by the respondents themselves merely as a defense and in
no way converted the action to an action for annulment of a tax sale.





















#2. G.R. Nos. 159017-18 March 9, 2011
PAULINO S. ASILO, JR., Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and Spouses VISITACION AND CESAR C. BOMBASI, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 159059
VICTORIA BUETA VDA. DE COMENDADOR, IN REPRESENTATION OF DEMETRIO T.
COMENDADOR,Petitioner,
vs.
VISITACION C. BOMBASI AND CESAR C. BOMBASI, Respondents.
D E C I S I O N
PEREZ, J.:
At bench are appeals by certiorari
1
from the Decision
2
of the Fourth Division of the Sandiganbayan; (1)
finding Demetrio T. Comendador
3
(Mayor Comendador) and Paulino S. Asilo, Jr.
4
guilty beyond
reasonable doubt of violation of Sec. 3(e) of Republic Act No. 3019; (2) dismissing the cases against
accused Alberto S. Angeles;
5
(3) ordering the defendants Municipality of Nagcarlan, Laguna, Demetrio T.
Comendador and Paulino S. Asilo, Jr. to pay the plaintiffs now respondents Visitacion C. Bombasi
(Visitacion) and Cesar C. Bombasi damages; and (4) dismissing the cases against the spouses Alida and
Teddy Coroza
6
and Benita and Isagani Coronado.
7

The factual antecedents of the case are:
On 15 March 1978, Private Respondent Visitacions late mother Marciana Vda. De Coronado (Vda. De
Coronado) and the Municipality of Nagcarlan, Laguna (represented by the then Municipal Mayor
Crisostomo P. Manalang) entered into a lease contract whereby the Municipality allowed the use and
enjoyment of property comprising of a lot and a store located at the corner of Coronado and E.
Fernandez Sts. at Poblacion, Nagcarlan, Laguna, in favor of the respondents mother for a period of
twenty (20) years beginning on 15 March 1978 until 15 March 1998, extendible for another 20 years.
8

The lease contract provided that the late Vda. De Coronado could build a firewall on her rented property
which must be at least as high as the store; and in case of modification of the public market, she or her
heir/s would be given preferential rights.
Visitacion took over the store when her mother died sometime in 1984. From then on up to January
1993, Visitacion secured the yearly Mayors permits.
Sometime in 1986, a fire razed the public market of Nagcarlan. Upon Visitacions request for inspection
on 15 May 1986, District Engineer Marcelino B. Gorospe (Engineer Gorospe) of the then Ministry of
Public Works and Highways,
11
Regional Office No. IV-A, found that the store of Visitacion remained
intact and stood strong. This finding of Engineer Gorospe was contested by the Municipality of
Nagcarlan.
The store of Visitacion continued to operate after the fire until 15 October 1993.
On 1 September 1993, Visitacion received a letter
12
from Mayor Comendador directing her to demolish
her store within five (5) days from notice. Attached to the letter were copies of Sangguniang Bayan
Resolution No. 156
13
dated 30 August 1993 and a Memorandum issued by Asst. Provincial Prosecutor
Marianito Sasondoncillo of Laguna.
The relevant provisos of the Resolution No. 156 states that:
NOW THEREFORE, be it RESOLVED, as it hereby resolved to authorize Hon. Demetrio T. Comendador to
enforce and order the Coronados to demolish the building constructed on the space previously rented
to them in order to give way for the construction of a new municipal market building.
RESOLVED FURTHER, to authorize Demetrio T. Comendador, Honorable Mayor of Nagcarlan to file an
Unlawful Detainer Case with damages for the expenses incurred due to the delay in the completion of
the project if the Coronados continuously resists the order.
On 3 September 1993, Visitacion wrote a reply letter to Mayor Comendador saying that: (1) the lease
contract was still existing and legally binding; (2) she was willing to vacate the store as long as same
place and area would be given to her in the new public market; and (3) in case her proposals are not
acceptable to Mayor Comendador, for the latter to just file an unlawful detainer case against her
pursuant to Sangguniang Bayan Resolution No. 156. Pertinent portions of the letter read:
x x x With all due respect to the resolution of the Municipal Council and the opinion rendered by the
Laguna Asst. Provincial Prosecutor, it is my considered view, however, arrived at after consultation with
my legal counsel, that our existing lease contract is still legally binding and in full force and effect. Lest I
appear to be defiant, let me reiterate to you and the council that we are willing to vacate the said
building provided that a new contract is executed granting to us the same space or lot and the same
area. I believe that our proposal is most reasonable and fair under the circumstance. If you are not
amenable to the said proposal, I concur with the position taken by the Council for you to file the
appropriate action in court for unlawful detainer to enable our court to finally thresh out our
differences.
14
1avvphi1
On 15 September 1993, Asst. Provincial Prosecutor Florencio Buyser sent a letter to Visitacion ordering
her to vacate the portion of the public market she was occupying within 15 days from her receipt of the
letter; else, a court action will be filed against her.
On 11 October 1993, the Sangguniang Bayan of Nagcarlan, Laguna issued Resolution No. 183 authorizing
Mayor Comendador to demolish the store being occupied by Visitacion using legal means. The
significant portion of the Resolution reads:
Kung kaya ang Sangguniang Bayan ay buong pagkakaisang IPINASIYA: Ang pagbibigay kapangyarihan kay
Kgg. Demetrio T. Comendador na ipagiba ang anumang istrakturang nagiging sagabal sa mabilis at
maayos na pagbabangon ng pamilihang bayan.
15

On 14 October 1993, Municipal Administrator Paulino S. Asilo, Jr. (Asilo) also sent a letter
16
to Visitacion
informing her of the impending demolition of her store the next day. Within the same day, Visitacion
wrote a reply letter
17
to Asilo, alleging that there is no legal right to demolish the store in the absence of
a court order and that the Resolutions did not sanction the demolition of her store but only the filing of
an appropriate unlawful detainer case against her. She further replied that if the demolition will take
place, appropriate administrative, criminal and civil actions will be filed against Mayor Comendador,
Asilo and all persons who will take part in the demolition.
On 15 October 1993, Mayor Comendador relying on the strength of Sangguniang Bayan Resolution Nos.
183 and 156 authorized the demolition of the store with Asilo and Angeles supervising the work.
Engineer Winston Cabrega (Engineer Cabrega), a licensed civil engineer, estimated the cost of the
demolished property as amounting to P437,900.00
18

On 19 August 1994, Visitacion, together with her husband Cesar Bombasi (Spouses Bombasi) filed with
the Regional Trial Court of San Pablo City, Laguna a Civil Case for damages with preliminary injunction
against the Municipality of Nagcarlan, Laguna, Mayor Demetrio T. Comendador, Paulino S. Asilo, Jr., and
Alberto S. Angeles. The complaint was soon after amended to include the Spouses Benita and Isagani
Coronado and Spouses Alida and Teddy Coroza as formal defendants because they were then the
occupants of the contested area.
The spouses prayed for the following disposition:
1. RESTRAINING or ENJOINING defendant Municipality and defendant Municipal Mayor from leasing the
premises subject of lease Annex "A" hereof, part of which is now occupied by PNP Outpost and by the
Municipal Collectors Office, and the equivalent adjacent area thereof, and to cause the removal of said
stalls;
2. UPHOLDING the right of plaintiffs to occupy the equivalent corner area of the leased areas being now
assigned to other persons by defendants Municipality and/or by defendant Municipal Mayor, and to
allow plaintiffs to construct their stalls thereon;
3. MAKING the injunction permanent, after trial;
4. ORDERING defendants to pay plaintiffs, jointly and severally, the following
(a) P437,900.00 for loss of building/store and other items therein;
(b) P200,000.00 for exemplary damages;
(c) P200,000.00 for moral damages;
(d) P30,.00 for attorneys fees and P700.00 for every attendance of counsel in court.
5. GRANTING further reliefs upon plaintiffs as justice and equity may warrant in the premises.
20

Spouses Bombasi, thereafter, filed a criminal complaint
21
against Mayor Comendador, Asilo and Angeles
for violation of Sec. 3(e) of Republic Act No. 3019 otherwise known as the "Anti-Graft and Corrupt
Practices Act" before the Office of the Ombudsman. On 22 February 1996, an Information
22
against
Mayor Comendador, Asilo and Angeles was filed, which reads:
That on or about October 15, 1993, at Nagcarlan, Laguna, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, all public officers, accused Demetrio T. Comendador, being
then the Municipal Mayor, accused Paulino S. Asilo, Jr. being then the Municipal Administrator and
accused Alberto S. Angeles being then the Municipal Planning and Development Coordinator, all of the
Municipality of Nagcarlan, Laguna, committing the crime herein charged in relation to, while in the
performance and taking advantage of their official functions, conspiring and confederating with each
other, and with evident bad faith, manifest partiality or through gross inexcusable negligence, did then
and there willfully, unlawfully, criminally cause the demolition of a public market stall leased by the
municipal government in favor of one Visitacion Coronado-Bombasi without legal or justifiable ground
therefor, thus, causing undue injury to the latter in the amount of PESOS: FOUR HUNDRED THIRTY
SEVEN THOUSAND AND NINE HUNDRED ONLY (P437,900.00).
Upon their arraignments, all the accused entered their separate pleas of "Not Guilty."
On 4 March 1997, the Sandiganbayan promulgated a Resolution ordering the consolidation of Civil Case
No. SP-4064 (94)
23
with Criminal Case No. 23267 pending before the Third Division pursuant to Section
4, Presidential Decree No. 1606, which pertinently reads:
Any provision of law or Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability arising from the offense charged shall at all
times be simultaneously instituted with, and jointly determined in the same proceeding by the
Sandiganbayan or the appropriate courts, the filing of the criminal action being deemed to necessarily
carry with it the filing of the civil action, and no right to reserve the filing of such civil action separately
from the criminal action shall be recognized; Provided, however, that where the civil action had
heretofore been filed separately but judgment therein has not yet been rendered, and the criminal case
is hereafter filed with the Sandiganbayan or the appropriate court, said civil action shall be transferred
to the Sandiganbayan or the appropriate court as the case may be, for consolidation and joint
determination with the criminal action, otherwise the separate civil action shall be deemed
abandoned.
24

During the pendency of the case, Alberto S. Angeles died on 16 November 1997. Accordingly, the
counsel of Angeles filed a motion to drop accused Angeles. On 22 September 1999, the Third Division of
Sandiganbayan issued an Order
25
DISMISSING the case against Angeles. The germane portion of the
Order reads:
In view of the submission of the death certificate of accused/defendant Alberto S. Angeles, and there
being no objection on the part of the Public Prosecutor, cases against deceased accused/defendant
Angeles only, are hereby DISMISSED.
The death of Mayor Comendador followed on 17 September 2002. As a result, the counsel of the late
Mayor filed on 3 March 2003 a Manifestation before the Sandiganbayan informing the court of the fact
of Mayor Comendadors death.
On 28 April 2003, the Sandiganbayan rendered a decision, the dispositive portion of which reads as
follows:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
In Criminal Case No. 23267, the court finds accused Demetrio T. Comendador and Paulino S. Asilo, Jr.
guilty beyond reasonable doubt of violation of Sec. 3(e) of Republic Act. No. 3019 as amended, and in
the absence of aggravating and mitigating circumstances, applying the Indeterminate Sentence Law, said
accused are sentenced to suffer the indeterminate penalty of 6 years and 2 months imprisonment as
minimum to 10 years and 1 day as maximum.
The order of the court dated September 22, 1999 dismissing the cases against the accused Alberto S.
Angeles, who died on November 16, 1997 is hereby reiterated.
In Civil Case No. 4064, defendants Municipality of Nagcarlan, Laguna, Demetrio T. Comendador and
Paulino S. Asilo, Jr. are hereby ordered jointly and severally to pay plaintiff P437,900.00 as actual
damages for the destruction of the store; P100,000.00 as moral damages; P30,000.00 as attorneys fees,
and to pay the cost of the suit. The prayer for exemplary damages is denied as the court found no
aggravating circumstances in the commission of the crime.
In view of this courts finding that the defendant spouses Alida and Teddy Coroza are lawful occupants
of the subject market stalls from which they cannot be validly ejected without just cause, the complaint
against them is dismissed. The complaint against defendant spouses Benita and Isagani Coronado is
likewise dismissed, it appearing that they are similarly situated as the spouses Coroza. Meanwhile,
plaintiff Visitacion Bombasi is given the option to accept market space being given to her by the
municipality, subject to her payment of the appropriate rental and permit fees.
The prayer for injunctive relief is denied, the same having become moot and academic.
The compulsory counterclaim of defendant Comendador is likewise denied for lack of merit.
26

Within the same day, Asilo, through his counsel, filed a Motion for Reconsideration
27
of the Decision
alleging that there was only an error of judgment when he complied with and implemented the order of
his superior, Mayor Comendador. He likewise alleged that there is no liability when a public officer
commits in good faith an error of judgment. The Sandiganbayan, on its Resolution
28
dated 21 July 2003
denied the Motion for Reconsideration on the ground that good faith cannot be argued to support his
cause in the face of the courts finding that bad faith attended the commission of the offense charged.
The Court further explained that the invocation of compliance with an order of a superior is of no
moment for the "demolition [order] cannot be described as having the semblance of legality inasmuch
as it was issued without the authority and therefore the same was patently illegal."
29

The counsel for the late Mayor also filed its Motion for Reconsideration
30
on 12 May 2003 alleging that
the death of the late Mayor had totally extinguished both his criminal and civil liability. The
Sandiganbayan on its Resolution
31
granted the Motion insofar as the extinction of the criminal liability is
concerned and denied the extinction of the civil liability holding that the civil action is an independent
civil action.
Hence, these Petitions for Review on Certiorari.
32

Petitioner Asilo argues that in order to sustain conviction under Sec. 3(e) of Republic Act No. 3019 or
"The Anti-Graft and Corrupt Practices Act," the public officer must have acted with manifest partiality,
evident bad faith or gross negligence. He also contended that he and his co-accused acted in good faith
in the demolition of the market and, thereby, no liability was incurred.
On the other hand, Petitioner Victoria argues that the death of Mayor Comendador prior to the
promulgation of the decision extinguished NOT ONLY Mayor Comendadors criminal liability but also his
civil liability. She also asserted good faith on the part of the accused public officials when they
performed the demolition of the market stall. Lastly, she contended that assuming arguendo that there
was indeed liability on the part of the accused public officials, the actual amount of damages being
claimed by the Spouses Bombasi has no basis and was not duly substantiated.
Liability of the accused public officials
under Republic Act No. 3019
Section 3(e) of Republic Act No. 3019 provides:
In addition to acts or omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be unlawful:
(e) Causing any undue injury to any party, including the Government, or giving any private party any
unwarranted benefits, advantage or preference in the discharge of his official, administrative or judicial
functions throughmanifest partiality, evident bad faith or gross inexcusable negligence. This provision
shall apply to officers and employees of offices or government corporations charged with the grant of
licenses or permits or other concessions.
The elements of the offense are as follows: (1) that the accused are public officers or private persons
charged in conspiracy with them; (2) that said public officers commit the prohibited acts during the
performance of their official duties or in relation to their public positions; (3) that they caused undue
injury to any party, whether the Government or a private party; (4) OR that such injury is caused by
giving unwarranted benefits, advantage or preference to the other party; and (5) that the public officers
have acted with manifest partiality, evident bad faithor gross inexcusable negligence.
33

We sustain the Sandiganbayan in its finding of criminal and civil liabilities against petitioner Asilo and
petitioner Mayor Comendador as here represented by his widow Victoria Bueta.
We agree with the Sandiganbayan that it is undisputable that the first two requisites of the criminal
offense were present at the time of the commission of the complained acts and that, as to the
remaining elements, there is sufficient amount of evidence to establish that there was an undue injury
suffered on the part of the Spouses Bombasi and that the public officials concerned acted with evident
bad faith when they performed the demolition of the market stall.
Causing undue injury to any party, including the government, could only mean actual injury or damage
which must be established by evidence.
34

In jurisprudence, "undue injury" is consistently interpreted as "actual." Undue has been defined as
"more than necessary, not proper, [or] illegal;" and injury as "any wrong or damage done to another,
either in his person, rights, reputation or property [that is, the] invasion of any legally protected interest
of another." Actual damage, in the context of these definitions, is akin to that in civil law.
35

It is evident from the records, as correctly observed by the Sandiganbayan, that Asilo and Mayor
Comendador as accused below did not deny that there was indeed damage caused the Spouses Bombasi
on account of the demolition. We affirm the finding that:
xxx. Clearly, the demolition of plaintiffs store was carried out without a court order, and
notwithstanding a restraining order which the plaintiff was able to obtain. The demolition was done in
the exercise of official duties which apparently was attended by evident bad faith, manifest partiality or
gross inexcusable negligence as there is nothing in the two (2) resolutions which gave the herein
accused the authority to demolish plaintiffs store.
"Evident bad faith" connotes not only bad judgment but also palpably and patently fraudulent and
dishonest purpose to do moral obliquity or conscious wrongdoing for some perverse motive or ill
will.
36
[It] contemplates a state of mind affirmatively operating with furtive design or with some motive
or self-interest or ill will or for ulterior purposes.
37

It is quite evident in the case at bar that the accused public officials committed bad faith in performing
the demolition.
First, there can be no merit in the contention that respondents structure is a public nuisance. The
abatement of a nuisance without judicial proceedings is possible if it is nuisance per se.
38
Nuisance per
se is that which is nuisance at all times and under any circumstance, regardless of location and
surroundings.
39
In this case, the market stall cannot be considered as a nuisance per se because as found
out by the Court, the buildings had not been affected by the 1986 fire. This finding was certified to by
Supervising Civil Engineer Wilfredo A. Sambrano of the Laguna District Engineer Office.
40
To quote:
An inspection has been made on the building (a commercial establishment) cited above and found out
the following:
1. It is a two-storey building, sketch of which is attached.
2. It is located within the market site.
3. The building has not been affected by the recent fire.
4. The concrete wall[s] does not even show signs of being exposed to fire.
41

Second, the Sangguniang Bayan resolutions are not enough to justify demolition. Unlike its predecessor
law,
42
the present Local Government Code
43
does not expressly provide for the abatement of
nuisance.
44
And even assuming that the power to abate nuisance is provided for by the present code,
the accused public officials were under the facts of this case, still devoid of any power to demolish the
store. A closer look at the contested resolutions reveals that Mayor Comendador was only authorized to
file an unlawful detainer case in case of resistance to obey the order or to demolish the building using
legal means. Clearly, the act of demolition without legal order in this case was not among those
provided by the resolutions, as indeed, it is a legally impossible provision.
Furthermore, the Municipality of Nagcarlan, Laguna, as represented by the then Mayor Comendador,
was placed in estoppel after it granted yearly business permits
45
in favor of the Spouses Bombasi. Art.
1431 of the New Civil Code provides that, through estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as against the person relying
thereon. The representation made by the municipality that the Spouses Bombasi had the right to
continuously operate its store binds the municipality. It is utterly unjust for the Municipality to receive
the benefits of the store operation and later on claim the illegality of the business.
The bad faith of the petitioners completes the elements of the criminal offense of violation of Sec. 3(e)
of Republic Act No. 3019. The same bad faith serves as the source of the civil liability of Asilo, Angeles,
and Mayor Comendador.
It must be noted that when Angeles died on 16 November 1997, a motion to drop him as an accused
was filed by his counsel with no objection on the part of the prosecution. The Sandiganbayan acted
favorably on the motion and issued an Order dismissing all the cases filed against Angeles. On the other
hand, when Mayor Comendador died and an adverse decision was rendered against him which resulted
in the filing of a motion for reconsideration by Mayor Comendadors counsel, the prosecution opposed
the Motion specifying the ground that the civil liability did not arise from delict, hence, survived the
death of the accused. The Sandiganbayan upheld the opposition of the prosecution which disposition
was not appealed.
We note, first off, that the death of Angeles and of Mayor Comendador during the pendency of the case
extinguished their criminal liabilities.
We now hold, as did the Sandiganbayan that the civil liability of Mayor Comendador survived his death;
and that of Angeles could have likewise survived had it not been for the fact that the resolution of the
Sandiganbayan that his death extinguished the civil liability was not questioned and lapsed into finality.
We laid down the following guidelines in People v. Bayotas:
46

Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the
civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the
accused prior to final judgment terminates his criminal liability and only the civil liability directly arising
from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."
Corollarily, the claim for civil liability survives notwithstanding the death of (the) accused, if the same
may also be predicated on a source of obligation other than delict. Article 1157 of the Civil Code
enumerates these other sources of obligation from which the civil liability may arise as a result of the
same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) Acts or omissions punished by law; and
e) Quasi-delicts. (Emphasis ours)
Where the civil liability survives, as explained [above], an action for recovery therefore may be pursued
but only by way of filing a separate civil action
47
and subject to Section 1, Rule 111 of the 1985 Rules on
Criminal Procedure as amended. This separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of obligation upon which
the same is based as explained above.
Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action
by prescription, in cases where during the prosecution of the criminal action and prior to its extinction,
the private-offended party instituted together therewith the civil action. In such case, the statute of
limitations on the civil liability is deemed interrupted during the pendency of the criminal case,
conformably with provisions of Article 1155 of the New Civil Code, which should thereby avoid any
apprehension on a possible privation of right by prescription.
Upon death of the accused pending appeal of his conviction, the criminal action is extinguished
inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein for
recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.
48

The New Civil Code provisions under the Chapter, Human Relations, were cited by the prosecution to
substantiate its argument that the civil action based therein is an independent one, thus, will stand
despite the death of the accused during the pendency of the case.
On the other hand, the defense invoked Section 4 of Presidential Decree No. 1606, as amended by
Republic Act No. 8249, in support of its argument that the civil action was dependent upon the criminal
action, thus, was extinguished upon the death of the accused. The law provides that:
Any provision of law or the Rules of Court to the contrary notwithstanding, the criminal action and the
corresponding civil action for the recovery of civil liability arising from the offense charged shall at all
times be simultaneously instituted with, and jointly determined in the same proceeding by, the
Sandiganbayan, the filing of the criminal action being deemed to necessarily carry with it the filing of the
civil action, and no right to reserve the filing of such action shall be recognized. (Emphasis ours)
We agree with the prosecution.
Death of Mayor Comendador during the pendency of the case could have extinguished the civil liability
if the same arose directly from the crime committed. However, in this case, the civil liability is based on
another source of obligation, the law on human relations.
49
The pertinent articles follow:
Art. 31 of the Civil Code states:
When the civil action is based on an obligation not arising from the act or omission complained of as a
felony, such civil action may proceed independently of the criminal proceedings and regardless of the
result of the latter.
And, Art. 32(6) states:
Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the following rights and liberties of another person
shall be liable to the latter for damages:
(6) The right against deprivation of property without due process of law;
In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes
a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil
action for damages, and for other relief. Such civil action shall proceed independently of any criminal
prosecution (if the latter be instituted), and may be proved by a preponderance of evidence.
As held in Aberca v. Ver:
It is obvious that the purpose of the above codal provision [Art. 32 of the New Civil Code] is to provide a
sanction to the deeply cherished rights and freedoms enshrined in the Constitution. Its message is clear;
no man may seek to violate those sacred rights with impunity. x x x.
50

Indeed, the basic facts of this case point squarely to the applicability of the law on human relations.
First, the complaint for civil liability was filed way AHEAD of the information on the Anti-Graft Law. And,
the complaint for damages specifically invoked defendant Mayor Comendadors violation of plaintiffs
right to due process. Thus:
In causing or doing the forcible demolition of the store in question, the individual natural defendants did
not only act with grave abuse of authority but usurped a power which belongs to our courts of justice;
such actuations were done with malice or in bad faith and constitute an invasion of the property rights
of plaintiff(s) without due process of law.
The Court is in one with the prosecution that there was a violation of the right to private property of the
Spouses Bombasi. The accused public officials should have accorded the spouses the due process of law
guaranteed by the Constitution and New Civil Code. The Sangguniang Bayan Resolutions as asserted by
the defense will not, as already shown, justify demolition of the store without court order. This Court in
a number of decisions
51
held that even if there is already a writ of execution, there must still be a need
for a special order for the purpose of demolition issued by the court before the officer in charge can
destroy, demolish or remove improvements over the contested property.
52
The pertinent provisions are
the following:
Before the removal of an improvement must take place, there must be a special order, hearing and
reasonable notice to remove. Section 10(d), Rule 39 of the Rules of Court provides:
(d) Removal of improvements on property subject of execution. When the property subject of
execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer shall not destroy, demolish or remove said improvements except upon special order of the
court, issued upon motion of the judgment obligee after due hearing and after the former has failed to
remove the same within a reasonable time fixed by the court.
The above-stated rule is clear and needs no interpretation. If demolition is necessary, there must be a
hearing on the motion filed and with due notices to the parties for the issuance of a special order of
demolition.
53

This special need for a court order even if an ejectment case has successfully been litigated, underscores
the independent basis for civil liability, in this case, where no case was even filed by the municipality.
The requirement of a special order of demolition is based on the rudiments of justice and fair play. It
frowns upon arbitrariness and oppressive conduct in the execution of an otherwise legitimate act. It is
an amplification of the provision of the Civil Code that every person must, in the exercise of his rights
and in the performance of his duties, act with justice, give everyone his due, and observe honesty and
good faith.
54

Notably, the fact that a separate civil action precisely based on due process violations was filed even
ahead of the criminal case, is complemented by the fact that the deceased plaintiff Comendador was
substituted by his widow, herein petitioner Victoria who specified in her petition that she has
"substituted him as petitioner in the above captioned case." Section 1, Rule III of the 1985 Rules in
Criminal Procedure mentioned in Bayotas is, therefore, not applicable. Truly, the Sandiganbayan was
correct when it maintained the separate docketing of the civil and criminal cases before it although their
consolidation was erroneously based on Section 4 of Presidential Decree No. 1606 which deals with civil
liability "arising from the offense charged."
We must, however, correct the amount of damages awarded to the Spouses Bombasi.
To seek recovery of actual damages, it is necessary to prove the actual amount of loss with a reasonable
degree of certainty, premised upon competent proof and on the best evidence obtainable.
55
In this case,
the Court finds that the only evidence presented to prove the actual damages incurred was the itemized
list of damaged and lost items
56
prepared by Engineer Cabrega, an engineer commissioned by the
Spouses Bombasi to estimate the costs.
As held by this Court in Marikina Auto Line Transport Corporation v. People of the Philippines,
57

[W]e agree with the contention of petitioners that respondents failed to prove that the damages to the
terrace caused by the incident amounted to P100,000.00. The only evidence adduced by respondents to
prove actual damages claimed by private respondent were the summary computation of damage made
by Engr. Jesus R. Regal, Jr. amounting to P171,088.46 and the receipt issued by the BB Construction and
Steel Fabricator to private respondent for P35,000.00 representing cost for carpentry works, masonry,
welding, and electrical works. Respondents failed to present Regal to testify on his estimation. In its five-
page decision, the trial court awardedP150,000.00 as actual damages to private respondent but failed to
state the factual basis for such award. Indeed, the trial court merely declared in the decretal portion of
its decision that the "sum of P150,000.00 as reasonable compensation sustained by plaintiff for her
damaged apartment." The appellate court, for its part, failed to explain how it arrived at the amount
of P100,000.00 in its three-page decision. Thus, the appellate court merely declared:
With respect to the civil liability of the appellants, they contend that there was no urgent necessity to
completely demolish the apartment in question considering the nature of the damages sustained as a
result of the accident. Consequently, appellants continue, the award of P150,000.00 as compensation
sustained by the plaintiff-appellee for her damaged apartment is an unconscionable amount.
Further, in one case,
58
this Court held that the amount claimed by the respondent-claimants witness as
to the actual amount of damages "should be admitted with extreme caution considering that, because it
was a bare assertion, it should be supported by independent evidence." The Court further said that
whatever claim the respondent witness would allege must be appreciated in consideration of his
particular self-interest.
59
There must still be a need for the examination of the documentary evidence
presented by the claimants to support its claim with regard to the actual amount of damages.
The price quotation made by Engineer Cabrega presented as an exhibit
60
partakes of the nature of
hearsay evidence considering that the person who issued them was not presented as a witness.
61
Any
evidence, whether oral or documentary, is hearsay if its probative value is not based on the personal
knowledge of the witness but on the knowledge of another person who is not on the witness stand.
Hearsay evidence, whether objected to or not, has no probative value unless the proponent can show
that the evidence falls within the exceptions to the hearsay evidence rule.
62
Further, exhibits do not fall
under any of the exceptions provided under Sections 37 to 47 of Rule 130 of the Rules of Court.
Though there is no sufficient evidence to award the actual damages claimed, this Court grants
temperate damages for P200,000.00 in view of the loss suffered by the Spouses Bombasi. Temperate
damages are awarded in accordance with Art. 2224 of the New Civil Code when the court finds that
some pecuniary loss has been suffered but its amount cannot, from the nature of the case, be proven
with certainty. The amount of temperate or moderated damages is usually left to the discretion of the
courts but the same should be reasonable, bearing in mind that the temperate damages should be more
than nominal but less than compensatory.
63
Without a doubt, the Spouses Bombasi suffered some form
of pecuniary loss in the impairment of their store. Based on the record of the case,
64
the demolished
store was housed on a two-story building located at the markets commercial area and its concrete walls
remained strong and not affected by the fire. However, due to the failure of the Spouses Bombasi to
prove the exact amount of damage in accordance with the Rules of Evidence,
65
this court finds
thatP200,000.00 is the amount just and reasonable under the circumstances.
WHEREFORE, the instant appeal is DENIED. Accordingly, the Decision of the Sandiganbayan dated 28
April 2003 is hereby AFFIRMED WITH MODIFICATION. The Court affirms the decision finding the accused
Paulino S. Asilo, Jr. and Demetrio T. Comendador guilty of violating Section 3(e) of Republic Act No.
3019. We declare the finality of the dismissal of both the criminal and civil cases against Alberto S.
Angeles as the same was not appealed. In view of the death of Demetrio T. Comendador pending trial,
his criminal liability is extinguished; but his civil liability survives. The Municipality of Nagcarlan, Paulino
Asilo and Demetrio T. Comendador, as substituted by Victoria Bueta Vda. De Comendador, are hereby
declared solidarily liable to the Spouses Bombasi for temperate damages in the amount of P200,000.00
and moral damages in the amount of P100,000.00.
Costs against the petitioners-appellants.
SO ORDERED.,
Petitioner Sta. Lucia Realty & Development, Inc. (Sta. Lucia) is the registered owner of several parcels of
land with Transfer Certificates of Title (TCT) Nos. 39112, 39110 and 38457, all of which indicated that
the lots were located in Barrio Tatlong Kawayan, Municipality of Pasig
[5]
(Pasig).
The parcel of land covered by TCT No. 39112 was consolidated with that covered by TCT No. 518403,
which was situated in Barrio Tatlong Kawayan, Municipality of Cainta, Province of Rizal (Cainta). The
two combined lots were subsequently partitioned into three, for which TCT Nos. 532250, 598424, and
599131, now all bearing the Cainta address, were issued.
TCT No. 39110 was also divided into two lots, becoming TCT Nos. 92869 and 92870.
The lot covered by TCT No. 38457 was not segregated, but a commercial building owned by Sta. Lucia
East Commercial Center, Inc., a separate corporation, was built on it.
[6]

Upon Pasigs petition to correct the location stated in TCT Nos. 532250, 598424, and 599131, the Land
Registration Court, on June 9, 1995, ordered the amendment of the TCTs to read that the lots with
respect to TCT No. 39112 were located in Barrio Tatlong Kawayan, Pasig City.
[7]


On January 31, 1994, Cainta filed a petition
[8]
for the settlement of its land boundary dispute with Pasig
before the RTC, Branch 74 of Antipolo City (Antipolo RTC). This case, docketed as Civil Case No. 94-3006,
is still pending up to this date.
On November 28, 1995, Pasig filed a Complaint,
[9]
docketed as Civil Case No. 65420, against Sta. Lucia for
the collection of real estate taxes, including penalties and interests, on the lots covered by TCT Nos.
532250, 598424, 599131, 92869, 92870 and 38457, including the improvements thereon (the subject
properties).
Sta. Lucia, in its Answer, alleged that it had been religiously paying its real estate taxes to Cainta, just like
what its predecessors-in-interest did, by virtue of the demands and assessments made and the Tax
Declarations issued by Cainta on the claim that the subject properties were within its territorial
jurisdiction. Sta. Lucia further argued that since 1913, the real estate taxes for the lots covered by the
above TCTs had been paid to Cainta.
Cainta was allowed to file its own Answer-in-Intervention when it moved to intervene on the ground
that its interest would be greatly affected by the outcome of the case. It averred that it had been
collecting the real property taxes on the subject properties even before Sta. Lucia acquired them. Cainta
further asseverated that the establishment of the boundary monuments would show that the subject
properties are within its metes and bounds.
Sta. Lucia and Cainta thereafter moved for the suspension of the proceedings, and claimed that the
pending petition in the Antipolo RTC, for the settlement of boundary dispute between Cainta and Pasig,
presented a prejudicial question to the resolution of the case.
The RTC denied this in an Order dated December 4, 1996 for lack of merit. Holding that the TCTs were
conclusive evidence as to its ownership and location, the RTC, on August 10, 1998, rendered a Decision
in favor of Pasig.
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of [Pasig], ordering
Sta. Lucia Realty and Development, Inc. to pay [Pasig]:
1) P273,349.14 representing unpaid real estate taxes and penalties as of 1996, plus interest of 2% per
month until fully paid;

2) P50,000.00 as and by way of attorneys fees; and
3) The costs of suit.
Judgment is likewise rendered against the intervenor Municipality of Cainta, Rizal, ordering it to refund
to Sta. Lucia Realty and Development, Inc. the realty tax payments improperly collected and received by
the former from the latter in the aggregate amount of P358, 403.68.
[

After Sta. Lucia and Cainta filed their Notices of Appeal, Pasig, on September 11, 1998, filed a Motion for
Reconsideration of the RTCs August 10, 1998 Decision.
The RTC, on October 9, 1998, granted Pasigs motion in an Order and modified its earlier decision
to include the realty taxes due on the improvements on the subject lots:
WHEREFORE, premises considered, the plaintiffs motion for reconsideration is hereby
granted. Accordingly, the Decision, dated August 10, 1998 is hereby modified in that the defendant is
hereby ordered to pay plaintiff the amount of P5,627,757.07 representing the unpaid taxes and
penalties on the improvements on the subject parcels of land whereon real estate taxes are adjudged as
due for the year 1996.
Accordingly, Sta. Lucia filed an Amended Notice of Appeal to include the RTCs October 9, 1998 Order in
its protest.
On October 16, 1998, Pasig filed a Motion for Execution Pending Appeal, to which both Sta. Lucia and
Cainta filed several oppositions, on the assertion that there were no good reasons to warrant the
execution pending appeal.
On April 15, 1999, the RTC ordered the issuance of a Writ of Execution against Sta. Lucia.
On May 21, 1999, Sta. Lucia filed a Petition for Certiorari under Rule 65 of the Rules of Court with the
Court of Appeals to assail the RTCs order granting the execution. Docketed as CA-G.R. SP No. 52874,
the petition was raffled to the First Division of the Court of Appeals, which on September 22, 2000, ruled
in favor of Sta. Lucia, to wit:
WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE
COURSE and GRANTED by this Court. The assailed Order dated April 15, 1999 in Civil Case No. 65420
granting the motion for execution pending appeal and ordering the issuance of a writ of execution
pending appeal is hereby SET ASIDE and declared NULL and VOID.
[18]

The Court of Appeals added that the boundary dispute case presented a prejudicial question which
must be decided before x x x Pasig can collect the realty taxes due over the subject properties.
[19]

Pasig sought to have this decision reversed in a Petition for Certiorari filed before this Court on
November 29, 2000, but this was denied on June 25, 2001 for being filed out of time.
[20]

Meanwhile, the appeal filed by Sta. Lucia and Cainta was raffled to the (former) Seventh Division of the
Court of Appeals and docketed as CA-G.R. CV No. 69603. On June 30, 2004, the Court of Appeals
rendered its Decision, wherein it agreed with the RTCs judgment:
WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that the award
of P50,000.00 attorneys fees is DELETED.
[

In affirming the RTC, the Court of Appeals declared that there was no proper legal basis to suspend the
proceedings. Elucidating on the legal meaning of a prejudicial question, it held that there can be no
prejudicial question when the cases involved are both civil. The Court of Appeals further held that the
elements of litis pendentia and forum shopping, as alleged by Cainta to be present, were not met.
Sta. Lucia and Cainta filed separate Motions for Reconsideration, which the Court of Appeals denied in a
Resolution dated January 27, 2005.
Undaunted, Sta. Lucia and Cainta filed separate Petitions for Certiorari with this Court. Caintas petition,
docketed as G.R. No. 166856 was denied on April 13, 2005 for Caintas failure to show any reversible
error. Sta. Lucias own petition is the one subject of this decision.
[24]

In praying for the reversal of the June 30, 2004 judgment of the Court of Appeals, Sta. Lucia assigned the
following errors:
ASSIGNMENT OF ERRORS
I.THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING [WITH MODIFICATION] THE DECISION OF
THE REGIONAL TRIAL COURT IN PASIG CITY
II.THE HONORABLE COURT OF APPEALS ERRED IN NOT SUSPENDING THE CASE IN VIEW OF THE
PENDENCY OF THE BOUNDARY DISPUTE WHICH WILL FINALLY DETERMINE THE SITUS OF THE SUBJECT
PROPERTIES
III.THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE PAYMENT OF REALTY TAXES
THROUGH THE MUNICIPALITY OF CAINTA WAS VALID PAYMENT OF REALTY TAXES
IV.THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT IN THE MEANTIME THAT THE
BOUNDARY DISPUTE CASE IN ANTIPOLO CITY REGIONAL TRIAL COURT IS BEING FINALLY RESOLVED, THE
PETITIONER STA. LUCIA SHOULD BE PAYING THE REALTY TAXES ON THE SUBJECT PROPERTIES THROUGH
THE INTERVENOR CAINTA TO PRESERVE THE STATUS QUO
Pasig, countering each error, claims that the lower courts correctly decided the case considering that the
TCTs are clear on their faces that the subject properties are situated in its territorial jurisdiction. Pasig
contends that the principles of litis pendentia, forum shopping, and res judicata are all inapplicable, due
to the absence of their requisite elements. Pasig maintains that the boundary dispute case before the
Antipolo RTC is independent of the complaint for collection of realty taxes which was filed before the
Pasig RTC. It avers that the doctrine of prejudicial question, which has a definite meaning in law,
cannot be invoked where the two cases involved are both civil. Thus, Pasig argues, since there is no
legal ground to preclude the simultaneous hearing of both cases, the suspension of the proceedings in
the Pasig RTC is baseless.
Cainta also filed its own comment reiterating its legal authority over the subject properties, which fall
within its territorial jurisdiction. Cainta claims that while it has been collecting the realty taxes over the
subject properties since way back 1913, Pasig only covered the same for real property tax purposes in
1990, 1992, and 1993. Cainta also insists that there is a discrepancy between the locational entries and
the technical descriptions in the TCTs, which further supports the need to await the settlement of the
boundary dispute case it initiated.

The errors presented before this Court can be narrowed down into two basic issues:
1) Whether the RTC and the CA were correct in deciding Pasigs Complaint without waiting for the
resolution of the boundary dispute case between Pasig and Cainta; and
2) Whether Sta. Lucia should continue paying its real property taxes to Cainta, as it alleged to have
always done, or to Pasig, as the location stated in Sta. Lucias TCTs.
We agree with the First Division of the Court of Appeals in CA-G.R. SP No. 52874 that the resolution of
the boundary dispute between Pasig and Cainta would determine which local government unit is
entitled to collect realty taxes from Sta. Lucia.
[26]

The Local Government Unit entitled
To Collect Real Property Taxes
The Former Seventh Division of the Court of Appeals held that the resolution of the complaint lodged
before the Pasig RTC did not necessitate the assessment of the parties evidence on the metes and
bounds of their respective territories. It cited our ruling in Odsigue v. Court of Appeals
[27]
wherein we
said that a certificate of title is conclusive evidence of both its ownership and location.
[28]
The Court of
Appeals even referred to specific provisions of the 1991 Local Government Code and Act. No. 496 to
support its ruling that Pasig had the right to collect the realty taxes on the subject properties as the titles
of the subject properties show on their faces that they are situated in Pasig.
[29]


Under Presidential Decree No. 464 or the Real Property Tax Code, the authority to collect real
property taxes is vested in the locality where the property is situated:
Sec. 5. Appraisal of Real Property. All real property, whether taxable or exempt, shall be appraised at
the current and fair market value prevailing in the locality where the property is situated.
Sec. 57. Collection of tax to be the responsibility of treasurers. The collection of the real property
tax and all penalties accruing thereto, and the enforcement of the remedies provided for in this Code or
any applicable laws, shall be the responsibility of the treasurer of the province, city or
municipality where the property is situated. (Emphases ours.)

This requisite was reiterated in Republic Act No. 7160, also known as the 1991 the Local Government
Code, to wit:
Section 201. Appraisal of Real Property. All real property, whether taxable or exempt, shall be
appraised at the current and fair market value prevailing in the locality where the property is
situated. The Department of Finance shall promulgate the necessary rules and regulations for the
classification, appraisal, and assessment of real property pursuant to the provisions of this Code.
Section 233. Rates of Levy. A province or city or a municipality within the Metropolitan Manila Area
shall fix a uniform rate of basic real property tax applicable to their respective localities as follows:
The only import of these provisions is that, while a local government unit is authorized under several
laws to collect real estate tax on properties falling under its territorial jurisdiction, it is imperative to
first show that these properties are unquestionably within its geographical boundaries.
Accentuating on the importance of delineating territorial boundaries, this Court, in Mariano, Jr. v.
Commission on Elections
[30]
said:
The importance of drawing with precise strokes the territorial boundaries of a local unit of government
cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise powers of government only within
the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state,
any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of
governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to be
avoided by the Local Government Code in requiring that the land area of a local government unit must
be spelled out in metes and bounds, with technical descriptions.
The significance of accurately defining a local government units boundaries was stressed in City of Pasig
v. Commission on Elections, which involved the consolidated petitions filed by the parties herein, Pasig
and Cainta, against two decisions of the Commission on Elections (COMELEC) with respect to the
plebiscites scheduled by Pasig for the ratification of its creation of two new Barangays. Ruling on the
contradictory reliefs sought by Pasig and Cainta, this Court affirmed the COMELEC decision to hold in
abeyance the plebiscite to ratify the creation of Barangay Karangalan; but set aside the COMELECs
other decision, and nullified the plebiscite that ratified the creation ofBarangay Napico in Pasig, until the
boundary dispute before the Antipolo RTC had been resolved. The aforementioned case held as follows:
1. The Petition of the City of Pasig in G.R. No. 125646 is DISMISSED for lack of merit; while
2. The Petition of the Municipality of Cainta in G.R. No. 128663 is GRANTED. The COMELEC Order in
UND No. 97-002, dated March 21, 1997, is SET ASIDE and the plebiscite held on March 15, 1997 to ratify
the creation of Barangay Napico in the City of Pasig is declared null and void. Plebiscite on the same is
ordered held in abeyance until after the courts settle with finality the boundary dispute between the
City of Pasig and the Municipality of Cainta, in Civil Case No. 94-3006.
[33]

Clearly therefore, the local government unit entitled to collect real property taxes from Sta. Lucia must
undoubtedly show that the subject properties are situated within its territorial jurisdiction; otherwise, it
would be acting beyond the powers vested to it by law.
Certificates of Title as
Conclusive Evidence of Location
While we fully agree that a certificate of title is conclusive as to its ownership and location, this does not
preclude the filing of an action for the very purpose of attacking the statements therein. In De Pedro v.
Romasan Development Corporation, we proclaimed that:
We agree with the petitioners that, generally, a certificate of title shall be conclusive as to all matters
contained therein and conclusive evidence of the ownership of the land referred to therein. However, it
bears stressing that while certificates of title are indefeasible, unassailable and binding against the
whole world, including the government itself, they do not create or vest title. They merely confirm or
record title already existing and vested. They cannot be used to protect a usurper from the true owner,
nor can they be used as a shield for the commission of fraud; neither do they permit one to enrich himself
at the expense of other.
[

In Pioneer Insurance and Surety Corporation v. Heirs of Vicente Coronado, we set aside the lower courts
ruling that the property subject of the case was not situated in the location stated and described in the
TCT, for lack of adequate basis. Our decision was in line with the doctrine that the TCT is conclusive
evidence of ownership and location. However, we refused to simply uphold the veracity of the disputed
TCT, and instead, we remanded the case back to the trial court for the determination of the exact
location of the property seeing that it was the issue in the complaint filed before it.
[37]

In City Government of Tagaytay v. Guerrero,

this Court reprimanded the City of Tagaytay for levying
taxes on a property that was outside its territorial jurisdiction, viz:
In this case, it is basic that before the City of Tagaytay may levy a certain property for sale due to tax
delinquency, the subject property should be under its territorial jurisdiction. The city officials are
expected to know such basic principle of law. The failure of the city officials of Tagaytay to verify if the
property is within its jurisdiction before levying taxes on the same constitutes gross negligence.
Although it is true that Pasig is the locality stated in the TCTs of the subject properties, both Sta. Lucia
and Cainta aver that the metes and bounds of the subject properties, as they are described in the TCTs,
reveal that they are within Caintas boundaries.
[40]
This only means that there may be a conflict
between the location as stated and the location as technically described in the TCTs. Mere reliance
therefore on the face of the TCTs will not suffice as they can only be conclusive evidence of the subject
properties locations if both the stated and described locations point to the same area.
The Antipolo RTC, wherein the boundary dispute case between Pasig and Cainta is pending, would be
able to best determine once and for all the precise metes and bounds of both Pasigs and Caintas
respective territorial jurisdictions. The resolution of this dispute would necessarily ascertain the extent
and reach of each local governments authority, a prerequisite in the proper exercise of their powers,
one of which is the power of taxation. This was the conclusion reached by this Court in City of Pasig v.
Commission on Elections,
[41]
and by the First Division of the Court of Appeals in CA-G.R. SP No.
52874. We do not see any reason why we cannot adhere to the same logic and reasoning in this case.
The Prejudicial Question Debate
It would be unfair to hold Sta. Lucia liable again for real property taxes it already paid simply because
Pasig cannot wait for its boundary dispute with Cainta to be decided. Pasig has consistently argued that
the boundary dispute case is not a prejudicial question that would entail the suspension of its collection
case against Sta. Lucia. This was also its argument in City of Pasig v. Commission on Elections,
[42]
when it
sought to nullify the COMELECs ruling to hold in abeyance (until the settlement of the boundary dispute
case), the plebiscite that will ratify its creation of Barangay Karangalan. We agreed with the COMELEC
therein that the boundary dispute case presented a prejudicial questionand explained our statement in
this wise:
To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006 involving the
boundary dispute between the Municipality of Cainta and the City of Pasig presents aprejudicial
question which must first be decided before plebiscites for the creation of the proposed barangays may
be held.
The City of Pasig argues that there is no prejudicial question since the same contemplates a civil and
criminal action and does not come into play where both cases are civil, as in the instant case. While this
may be the general rule, this Court has held in Vidad v. RTC of Negros Oriental, Br. 42,

that, in the
interest of good order, we can very well suspend action on one case pending the final outcome of
another case closely interrelated or linked to the first.
In the case at bar, while the City of Pasig vigorously claims that the areas covered by the proposed
Barangays Karangalan and Napico are within its territory, it can not deny that portions of the same area
are included in the boundary dispute case pending before the Regional Trial Court of Antipolo. Surely,
whether the areas in controversy shall be decided as within the territorial jurisdiction of the Municipality
of Cainta or the City of Pasig has material bearing to the creation of the proposed Barangays Karangalan
and Napico. Indeed, a requisite for the creation of a barangay is for its territorial jurisdiction to be
properly identified by metes and bounds or by more or less permanent natural boundaries.

Precisely
because territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is
resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an
exercise in futility. Not only that, we would be paving the way for potentially ultra viresacts of such
barangays.
It is obvious from the foregoing, that the term prejudicial question, as appearing in the cases involving
the parties herein, had been used loosely. Its usage had been more in reference to its ordinary meaning,
than to its strict legal meaning under the Rules of Court.
[44]
Nevertheless, even without the impact of
the connotation derived from the term, our own Rules of Court state that a trial court may control its
own proceedings according to its sound discretion:

POWERS AND DUTIES OF COURTS AND JUDICIAL OFFICERS
Rule 135, SEC. 5. Inherent powers of courts. Every court shall have power:
(g) To amend and control its process and orders so as to make them comformable to law and justice.
Furthermore, we have acknowledged and affirmed this inherent power in our own decisions, to wit:
The court in which an action is pending may, in the exercise of a sound discretion, upon proper
application for a stay of that action, hold the action in abeyance to abide the outcome of another
pending in another court, especially where the parties and the issues are the same, for there is power
inherent in every court to control the disposition of causes (sic) on its dockets with economy of time and
effort for itself, for counsel, and for litigants. Where the rights of parties to the second action cannot be
properly determined until the questions raised in the first action are settled the second action should be
stayed.
The power to stay proceedings is incidental to the power inherent in every court to control the
disposition of the cases on its dockets, considering its time and effort, that of counsel and the litigants.
But if proceedings must be stayed, it must be done in order to avoid multiplicity of suits and prevent
vexatious litigations, conflicting judgments, confusion between litigants and courts. It bears stressing
that whether or not the RTC would suspend the proceedings in the SECOND CASE is submitted to its
sound discretion.
In light of the foregoing, we hold that the Pasig RTC should have held in abeyance the proceedings in
Civil Case No. 65420, in view of the fact that the outcome of the boundary dispute case before the
Antipolo RTC will undeniably affect both Pasigs and Caintas rights. In fact, the only reason Pasig had to
file a tax collection case against Sta. Lucia was not that Sta. Lucia refused to pay, but that Sta. Lucia had
already paid, albeit to another local government unit. Evidently, had the territorial boundaries of the
contending local government units herein been delineated with accuracy, then there would be no
controversy at all.
In the meantime, to avoid further animosity, Sta. Lucia is directed to deposit the succeeding real
property taxes due on the subject properties, in an escrow account with the Land Bank of the
Philippines.
WHEREFORE, the instant petition is GRANTED. The June 30, 2004 Decision and the January 27, 2005
Resolution of the Court of Appeals in CA-G.R. CV No. 69603 are SET ASIDE. The City of Pasig and the
Municipality of Cainta are both directed to await the judgment in their boundary dispute case (Civil Case
No. 94-3006), pending before Branch 74 of the Regional Trial Court in Antipolo City, to determine which
local government unit is entitled to exercise its powers, including the collection of real property taxes,
on the properties subject of the dispute. In the meantime, Sta. Lucia Realty and Development, Inc. is
directed to deposit the succeeding real property taxes due on the lots and improvements covered by
TCT Nos. 532250, 598424, 599131, 92869, 92870 and 38457 in an escrow account with the Land Bank of
the Philippines.
SO ORDERED.























#3. STA. LUCIA REALTY & DEVELOPMENT, INC., Petitioner
vs CITY OF PASIG, Respondent

For review is the June 30, 2004 Decision
[1]
and the January 27, 2005 Resolution
[2]
of the Court of Appeals
in CA-G.R. CV No. 69603, which affirmed with modification the August 10, 1998 Decision
[3]
and October
9, 1998 Order
[4]
of the Regional Trial Court (RTC) of Pasig City, Branch 157, in Civil Case No. 65420.

Petitioner Sta. Lucia Realty & Development, Inc. (Sta. Lucia) is the registered owner of several parcels of
land with Transfer Certificates of Title (TCT) Nos. 39112, 39110 and 38457, all of which indicated that
the lots were located in Barrio Tatlong Kawayan, Municipality of Pasig (Pasig).
The parcel of land covered by TCT No. 39112 was consolidated with that covered by TCT No. 518403,
which was situated in Barrio Tatlong Kawayan, Municipality of Cainta, Province of Rizal (Cainta). The
two combined lots were subsequently partitioned into three, for which TCT Nos. 532250, 598424, and
599131, now all bearing the Cainta address, were issued.
TCT No. 39110 was also divided into two lots, becoming TCT Nos. 92869 and 92870.
The lot covered by TCT No. 38457 was not segregated, but a commercial building owned by Sta. Lucia
East Commercial Center, Inc., a separate corporation, was built on it.
Upon Pasigs petition to correct the location stated in TCT Nos. 532250, 598424, and 599131, the Land
Registration Court, on June 9, 1995, ordered the amendment of the TCTs to read that the lots with
respect to TCT No. 39112 were located in Barrio Tatlong Kawayan, Pasig City.
On January 31, 1994, Cainta filed a petition for the settlement of its land boundary dispute with Pasig
before the RTC, Branch 74 of Antipolo City (Antipolo RTC). This case, docketed as Civil Case No. 94-3006,
is still pending up to this date.
On November 28, 1995, Pasig filed a Complaint, docketed as Civil Case No. 65420, against Sta. Lucia for
the collection of real estate taxes, including penalties and interests, on the lots covered by TCT Nos.
532250, 598424, 599131, 92869, 92870 and 38457, including the improvements thereon (the subject
properties).
Sta. Lucia, in its Answer, alleged that it had been religiously paying its real estate taxes to Cainta, just like
what its predecessors-in-interest did, by virtue of the demands and assessments made and the Tax
Declarations issued by Cainta on the claim that the subject properties were within its territorial
jurisdiction. Sta. Lucia further argued that since 1913, the real estate taxes for the lots covered by the
above TCTs had been paid to Cainta.
Cainta was allowed to file its own Answer-in-Intervention when it moved to intervene on the ground
that its interest would be greatly affected by the outcome of the case. It averred that it had been
collecting the real property taxes on the subject properties even before Sta. Lucia acquired them. Cainta
further asseverated that the establishment of the boundary monuments would show that the subject
properties are within its metes and bounds.
Sta. Lucia and Cainta thereafter moved for the suspension of the proceedings, and claimed that the
pending petition in the Antipolo RTC, for the settlement of boundary dispute between Cainta and Pasig,
presented a prejudicial question to the resolution of the case.
The RTC denied this in an Order dated December 4, 1996 for lack of merit. Holding that the TCTs were
conclusive evidence as to its ownership and location, the RTC, on August 10, 1998, rendered a Decision
in favor of Pasig.
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of [Pasig], ordering
Sta. Lucia Realty and Development, Inc. to pay [Pasig]:
1) P273,349.14 representing unpaid real estate taxes and penalties as of 1996, plus interest of 2% per
month until fully paid;
2) P50,000.00 as and by way of attorneys fees; and
3) The costs of suit.
Judgment is likewise rendered against the intervenor Municipality of Cainta, Rizal, ordering it to refund
to Sta. Lucia Realty and Development, Inc. the realty tax payments improperly collected and received by
the former from the latter in the aggregate amount of P358, 403.68.
After Sta. Lucia and Cainta filed their Notices of Appeal, Pasig, on September 11, 1998, filed a Motion for
Reconsideration of the RTCs August 10, 1998 Decision.
The RTC, on October 9, 1998, granted Pasigs motion in an Order and modified its earlier decision
to include the realty taxes due on the improvements on the subject lots:
WHEREFORE, premises considered, the plaintiffs motion for reconsideration is hereby
granted. Accordingly, the Decision, dated August 10, 1998 is hereby modified in that the defendant is
hereby ordered to pay plaintiff the amount of P5,627,757.07 representing the unpaid taxes and
penalties on the improvements on the subject parcels of land whereon real estate taxes are adjudged as
due for the year 1996.
Accordingly, Sta. Lucia filed an Amended Notice of Appeal to include the RTCs October 9, 1998 Order in
its protest.
On October 16, 1998, Pasig filed a Motion for Execution Pending Appeal, to which both Sta. Lucia and
Cainta filed several oppositions, on the assertion that there were no good reasons to warrant the
execution pending appeal.
On April 15, 1999, the RTC ordered the issuance of a Writ of Execution against Sta. Lucia.
On May 21, 1999, Sta. Lucia filed a Petition for Certiorari under Rule 65 of the Rules of Court with the
Court of Appeals to assail the RTCs order granting the execution. Docketed as CA-G.R. SP No. 52874,
the petition was raffled to the First Division of the Court of Appeals, which on September 22, 2000, ruled
in favor of Sta. Lucia, to wit:
WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE
COURSE and GRANTED by this Court. The assailed Order dated April 15, 1999 in Civil Case No. 65420
granting the motion for execution pending appeal and ordering the issuance of a writ of execution
pending appeal is hereby SET ASIDE and declared NULL and VOID.
[18]

The Court of Appeals added that the boundary dispute case presented a prejudicial question which
must be decided before x x x Pasig can collect the realty taxes due over the subject properties.
[19]

Pasig sought to have this decision reversed in a Petition for Certiorari filed before this Court on
November 29, 2000, but this was denied on June 25, 2001 for being filed out of time.
[20]

Meanwhile, the appeal filed by Sta. Lucia and Cainta was raffled to the (former) Seventh Division of the
Court of Appeals and docketed as CA-G.R. CV No. 69603. On June 30, 2004, the Court of Appeals
rendered its Decision, wherein it agreed with the RTCs judgment:

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that the award
of P50,000.00 attorneys fees is DELETED.
[21]

In affirming the RTC, the Court of Appeals declared that there was no proper legal basis to suspend the
proceedings.
[22]
Elucidating on the legal meaning of a prejudicial question, it held that there can be
no prejudicial question when the cases involved are both civil.
[23]
The Court of Appeals further held
that the elements of litis pendentia and forum shopping, as alleged by Cainta to be present, were not
met.
Sta. Lucia and Cainta filed separate Motions for Reconsideration, which the Court of Appeals denied in a
Resolution dated January 27, 2005.
Undaunted, Sta. Lucia and Cainta filed separate Petitions for Certiorari with this Court. Caintas petition,
docketed as G.R. No. 166856 was denied on April 13, 2005 for Caintas failure to show any reversible
error. Sta. Lucias own petition is the one subject of this decision.
[24]

In praying for the reversal of the June 30, 2004 judgment of the Court of Appeals, Sta. Lucia assigned the
following errors:
ASSIGNMENT OF ERRORS
I. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING [WITH MODIFICATION] THE DECISION OF
THE REGIONAL TRIAL COURT IN PASIG CITY
II. THE HONORABLE COURT OF APPEALS ERRED IN NOT SUSPENDING THE CASE IN VIEW OF THE
PENDENCY OF THE BOUNDARY DISPUTE WHICH WILL FINALLY DETERMINE THE SITUS OF THE SUBJECT
PROPERTIES
III. THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE PAYMENT OF REALTY TAXES
THROUGH THE MUNICIPALITY OF CAINTA WAS VALID PAYMENT OF REALTY TAXES
IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT IN THE MEANTIME THAT THE
BOUNDARY DISPUTE CASE IN ANTIPOLO CITY REGIONAL TRIAL COURT IS BEING FINALLY RESOLVED, THE
PETITIONER STA. LUCIA SHOULD BE PAYING THE REALTY TAXES ON THE SUBJECT PROPERTIES THROUGH
THE INTERVENOR CAINTA TO PRESERVE THE STATUS QUO.

Pasig, countering each error, claims that the lower courts correctly decided the case considering that the
TCTs are clear on their faces that the subject properties are situated in its territorial jurisdiction. Pasig
contends that the principles of litis pendentia, forum shopping, and res judicata are all inapplicable, due
to the absence of their requisite elements. Pasig maintains that the boundary dispute case before the
Antipolo RTC is independent of the complaint for collection of realty taxes which was filed before the
Pasig RTC. It avers that the doctrine of prejudicial question, which has a definite meaning in law,
cannot be invoked where the two cases involved are both civil. Thus, Pasig argues, since there is no
legal ground to preclude the simultaneous hearing of both cases, the suspension of the proceedings in
the Pasig RTC is baseless.
Cainta also filed its own comment reiterating its legal authority over the subject properties, which fall
within its territorial jurisdiction. Cainta claims that while it has been collecting the realty taxes over the
subject properties since way back 1913, Pasig only covered the same for real property tax purposes in
1990, 1992, and 1993. Cainta also insists that there is a discrepancy between the locational entries and
the technical descriptions in the TCTs, which further supports the need to await the settlement of the
boundary dispute case it initiated.
The errors presented before this Court can be narrowed down into two basic issues:
1) Whether the RTC and the CA were correct in deciding Pasigs Complaint without waiting for the
resolution of the boundary dispute case between Pasig and Cainta; and
2) Whether Sta. Lucia should continue paying its real property taxes to Cainta, as it alleged to have
always done, or to Pasig, as the location stated in Sta. Lucias TCTs.
We agree with the First Division of the Court of Appeals in CA-G.R. SP No. 52874 that the resolution of
the boundary dispute between Pasig and Cainta would determine which local government unit is
entitled to collect realty taxes from Sta. Lucia.

The Local Government Unit entitled
To Collect Real Property Taxes
The Former Seventh Division of the Court of Appeals held that the resolution of the complaint lodged
before the Pasig RTC did not necessitate the assessment of the parties evidence on the metes and
bounds of their respective territories. It cited our ruling in Odsigue v. Court of Appeals wherein we said
that a certificate of title is conclusive evidence of both its ownership and location. The Court of Appeals
even referred to specific provisions of the 1991 Local Government Code and Act. No. 496 to support its
ruling that Pasig had the right to collect the realty taxes on the subject properties as the titles of the
subject properties show on their faces that they are situated in Pasig.
Under Presidential Decree No. 464 or the Real Property Tax Code, the authority to collect real
property taxes is vested in the locality where the property is situated:
Sec. 5. Appraisal of Real Property. All real property, whether taxable or exempt, shall be appraised at
the current and fair market value prevailing in the locality where the property is situated.
Sec. 57. Collection of tax to be the responsibility of treasurers. The collection of the real property tax
and all penalties accruing thereto, and the enforcement of the remedies provided for in this Code or any
applicable laws, shall be the responsibility of the treasurer of the province, city or municipality where
the property is situated.
This requisite was reiterated in Republic Act No. 7160, also known as the 1991 the Local Government
Code, to wit:
Section 201. Appraisal of Real Property. All real property, whether taxable or exempt, shall be
appraised at the current and fair market value prevailing in the locality where the property is
situated. The Department of Finance shall promulgate the necessary rules and regulations for the
classification, appraisal, and assessment of real property pursuant to the provisions of this Code.
Section 233. Rates of Levy. A province or city or a municipality within the Metropolitan Manila Area
shall fix a uniform rate of basic real property tax applicable to their respective localities as follows:
The only import of these provisions is that, while a local government unit is authorized under several
laws to collect real estate tax on properties falling under its territorial jurisdiction, it is imperative to
first show that these properties are unquestionably within its geographical boundaries.
Accentuating on the importance of delineating territorial boundaries, this Court, in Mariano, Jr. v.
Commission on Elections said:
The importance of drawing with precise strokes the territorial boundaries of a local unit of government
cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise powers of government only within
the limits of its territorial jurisdiction. Beyond these limits, its acts are ultra vires. Needless to state,
any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of
governmental powers which ultimately will prejudice the people's welfare. This is the evil sought to be
avoided by the Local Government Code in requiring that the land area of a local government unit must
be spelled out in metes and bounds, with technical descriptions.
The significance of accurately defining a local government units boundaries was stressed in City of Pasig
v. Commission on Elections, which involved the consolidated petitions filed by the parties herein, Pasig
and Cainta, against two decisions of the Commission on Elections (COMELEC) with respect to the
plebiscites scheduled by Pasig for the ratification of its creation of two new Barangays. Ruling on the
contradictory reliefs sought by Pasig and Cainta, this Court affirmed the COMELEC decision to hold in
abeyance the plebiscite to ratify the creation of Barangay Karangalan; but set aside the COMELECs
other decision, and nullified the plebiscite that ratified the creation ofBarangay Napico in Pasig, until the
boundary dispute before the Antipolo RTC had been resolved. The aforementioned case held as follows:
1. The Petition of the City of Pasig in G.R. No. 125646 is DISMISSED for lack of merit; while
2. The Petition of the Municipality of Cainta in G.R. No. 128663 is GRANTED. The COMELEC Order in
UND No. 97-002, dated March 21, 1997, is SET ASIDE and the plebiscite held on March 15, 1997 to ratify
the creation of Barangay Napico in the City of Pasig is declared null and void. Plebiscite on the same is
ordered held in abeyance until after the courts settle with finality the boundary dispute between the
City of Pasig and the Municipality of Cainta, in Civil Case No. 94-3006.
Clearly therefore, the local government unit entitled to collect real property taxes from Sta. Lucia must
undoubtedly show that the subject properties are situated within its territorial jurisdiction; otherwise, it
would be acting beyond the powers vested to it by law.

Certificates of Title as
Conclusive Evidence of Location
While we fully agree that a certificate of title is conclusive as to its ownership and location, this does not
preclude the filing of an action for the very purpose of attacking the statements therein. In De Pedro v.
Romasan Development Corporation, we proclaimed that:
We agree with the petitioners that, generally, a certificate of title shall be conclusive as to all matters
contained therein and conclusive evidence of the ownership of the land referred to therein. However, it
bears stressing that while certificates of title are indefeasible, unassailable and binding against the
whole world, including the government itself, they do not create or vest title. They merely confirm or
record title already existing and vested. They cannot be used to protect a usurper from the true owner,
nor can they be used as a shield for the commission of fraud; neither do they permit one to enrich himself
at the expense of other.
In Pioneer Insurance and Surety Corporation v. Heirs of Vicente Coronado, we set aside the lower courts
ruling that the property subject of the case was not situated in the location stated and described in the
TCT, for lack of adequate basis. Our decision was in line with the doctrine that the TCT is conclusive
evidence of ownership and location. However, we refused to simply uphold the veracity of the disputed
TCT, and instead, we remanded the case back to the trial court for the determination of the exact
location of the property seeing that it was the issue in the complaint filed before it.

In City Government of Tagaytay v. Guerrero, this Court reprimanded the City of Tagaytay for levying
taxes on a property that was outside its territorial jurisdiction, viz:
In this case, it is basic that before the City of Tagaytay may levy a certain property for sale due to tax
delinquency, the subject property should be under its territorial jurisdiction. The city officials are
expected to know such basic principle of law. The failure of the city officials of Tagaytay to verify if the
property is within its jurisdiction before levying taxes on the same constitutes gross negligence.
Although it is true that Pasig is the locality stated in the TCTs of the subject properties, both Sta. Lucia
and Cainta aver that the metes and bounds of the subject properties, as they are described in the TCTs,
reveal that they are within Caintas boundaries. This only means that there may be a conflict between
the location as stated and the location as technically described in the TCTs. Mere reliance therefore on
the face of the TCTs will not suffice as they can only be conclusive evidence of the subject properties
locations if both the stated and described locations point to the same area.
The Antipolo RTC, wherein the boundary dispute case between Pasig and Cainta is pending, would be
able to best determine once and for all the precise metes and bounds of both Pasigs and Caintas
respective territorial jurisdictions. The resolution of this dispute would necessarily ascertain the extent
and reach of each local governments authority, a prerequisite in the proper exercise of their powers,
one of which is the power of taxation. This was the conclusion reached by this Court in City of Pasig v.
Commission on Elections,
[41]
and by the First Division of the Court of Appeals in CA-G.R. SP No.
52874. We do not see any reason why we cannot adhere to the same logic and reasoning in this case.

The Prejudicial Question Debate
It would be unfair to hold Sta. Lucia liable again for real property taxes it already paid simply because
Pasig cannot wait for its boundary dispute with Cainta to be decided. Pasig has consistently argued that
the boundary dispute case is not a prejudicial question that would entail the suspension of its collection
case against Sta. Lucia. This was also its argument in City of Pasig v. Commission on Elections,
[42]
when it
sought to nullify the COMELECs ruling to hold in abeyance (until the settlement of the boundary dispute
case), the plebiscite that will ratify its creation of Barangay Karangalan. We agreed with the COMELEC
therein that the boundary dispute case presented a prejudicial questionand explained our statement in
this wise:

To begin with, we agree with the position of the COMELEC that Civil Case No. 94-3006 involving the
boundary dispute between the Municipality of Cainta and the City of Pasig presents aprejudicial
question which must first be decided before plebiscites for the creation of the proposed barangays may
be held.

The City of Pasig argues that there is no prejudicial question since the same contemplates a civil and
criminal action and does not come into play where both cases are civil, as in the instant case. While this
may be the general rule, this Court has held in Vidad v. RTC of Negros Oriental, Br. 42,

that, in the
interest of good order, we can very well suspend action on one case pending the final outcome of
another case closely interrelated or linked to the first.
In the case at bar, while the City of Pasig vigorously claims that the areas covered by the proposed
Barangays Karangalan and Napico are within its territory, it can not deny that portions of the same area
are included in the boundary dispute case pending before the Regional Trial Court of Antipolo. Surely,
whether the areas in controversy shall be decided as within the territorial jurisdiction of the Municipality
of Cainta or the City of Pasig has material bearing to the creation of the proposed Barangays Karangalan
and Napico. Indeed, a requisite for the creation of a barangay is for its territorial jurisdiction to be
properly identified by metes and bounds or by more or less permanent natural boundaries.

Precisely
because territorial jurisdiction is an issue raised in the pending civil case, until and unless such issue is
resolved with finality, to define the territorial jurisdiction of the proposed barangays would only be an
exercise in futility. Not only that, we would be paving the way for potentially ultra viresacts of such
barangays.
It is obvious from the foregoing, that the term prejudicial question, as appearing in the cases involving
the parties herein, had been used loosely. Its usage had been more in reference to its ordinary meaning,
than to its strict legal meaning under the Rules of Court.
[44]
Nevertheless, even without the impact of
the connotation derived from the term, our own Rules of Court state that a trial court may control its
own proceedings according to its sound discretion:

POWERS AND DUTIES OF COURTS AND JUDICIAL OFFICERS
Rule 135
SEC. 5. Inherent powers of courts. Every court shall have power:
(g) To amend and control its process and orders so as to make them comformable to law and justice.

Furthermore, we have acknowledged and affirmed this inherent power in our own decisions, to wit:
The court in which an action is pending may, in the exercise of a sound discretion, upon proper
application for a stay of that action, hold the action in abeyance to abide the outcome of another
pending in another court, especially where the parties and the issues are the same, for there is power
inherent in every court to control the disposition of causes (sic) on its dockets with economy of time and
effort for itself, for counsel, and for litigants. Where the rights of parties to the second action cannot be
properly determined until the questions raised in the first action are settled the second action should be
stayed.
The power to stay proceedings is incidental to the power inherent in every court to control the
disposition of the cases on its dockets, considering its time and effort, that of counsel and the litigants.
But if proceedings must be stayed, it must be done in order to avoid multiplicity of suits and prevent
vexatious litigations, conflicting judgments, confusion between litigants and courts. It bears stressing
that whether or not the RTC would suspend the proceedings in the SECOND CASE is submitted to its
sound discretion.
In light of the foregoing, we hold that the Pasig RTC should have held in abeyance the proceedings in
Civil Case No. 65420, in view of the fact that the outcome of the boundary dispute case before the
Antipolo RTC will undeniably affect both Pasigs and Caintas rights. In fact, the only reason Pasig had to
file a tax collection case against Sta. Lucia was not that Sta. Lucia refused to pay, but that Sta. Lucia had
already paid, albeit to another local government unit. Evidently, had the territorial boundaries of the
contending local government units herein been delineated with accuracy, then there would be no
controversy at all.
In the meantime, to avoid further animosity, Sta. Lucia is directed to deposit the succeeding real
property taxes due on the subject properties, in an escrow account with the Land Bank of the
Philippines.
WHEREFORE, the instant petition is GRANTED. The June 30, 2004 Decision and the January 27, 2005
Resolution of the Court of Appeals in CA-G.R. CV No. 69603 are SET ASIDE. The City of Pasig and the
Municipality of Cainta are both directed to await the judgment in their boundary dispute case (Civil Case
No. 94-3006), pending before Branch 74 of the Regional Trial Court in Antipolo City, to determine which
local government unit is entitled to exercise its powers, including the collection of real property taxes,
on the properties subject of the dispute. In the meantime, Sta. Lucia Realty and Development, Inc. is
directed to deposit the succeeding real property taxes due on the lots and improvements covered by
TCT Nos. 532250, 598424, 599131, 92869, 92870 and 38457 in an escrow account with the Land Bank of
the Philippines.
SO ORDERED.

























#4. A.M. No. RTJ-07-2040 : July 13, 2011]

JOSE T. ALBERTO V. JUDGE JOSE P. MORALLOS, METROPOLITAN TRIAL COURT, BRANCH 70, PASIG
CITY

Sirs/Mesdames:

Please take notice that the Court, Third Division, issued a Resolution dated 13 July 2011, which reads as
follows:
A.M. No. RTJ-07-2040
[*]
(Jose T. Alberto v. Judge Jose P. Morallos, Metropolitan Trial Court, Branch 70,
Pasig City).

RESOLUTION
In a verified complaint
[1]
dated February 21, 2006, complainant Jose T. Alberto charged respondent
Judge Jose P. Morallos, presiding judge of the Metropolitan Trial Court (MeTC) of Pasig City, Branch 70,
with gross inefficiency or gross ignorance of the law or both as well as with wanton and willful disregard
of applicable laws and rules.
Alberto alleged in his verified complaint that he filed, as attorney-in-fact of a property owner, an
eviction suit against Teodoro L. Lim, the lessee, in Civil Case 10962 for violation of the terms of the lease
agreement. The case was raffled to the sala of Judge Morallos. Answering the complaint, Lim denied
Alberto's allegations and in addition claimed that the action was premature given Alberto's failure to
submit the dispute to barangay conciliation under Section 6 of Presidential Decree (P.D.) 1508.
Judge Morallos referred the case to a mediator but it produced no settlement. Judge Morallos thus set
the case for preliminary conference on November 29, 2004 and placed it under the Rules of Summary
Procedure. The preliminary conference was reset to January 17, 2005, however, because November 29
was declared a holiday.
Because defendant Lim and his lawyer did not appear at the new preliminary conference date, Alberto
asked Judge Morallos to render judgment in his favor. But, absent some proof that Lim had notice of the
hearing, Judge Morallos instead issued an order,

resetting the preliminary conference to February 22,
2005.
Meantime, on learning from the Pasig Central Post Office that Lim received the notice of preliminary
conference on December 20, 2004, Alberto filed with the court a manifestation and motion
[8]
asking
Judge Morallos to render judgment against Lim as the rules provided. At the hearing of the motion on
January 25, 2005, neither Lim nor his lawyer appeared. Thus, at Alberto's behest Judge Morallos issued
an order on January 31, 2005, declaring his motion submitted for resolution.
Even then, on February 22, 2005, the date earlier set for a preliminary conference, Lim and his lawyer
did not show up, prompting Alberto to reiterate his right to an immediate judgment. On even date,
Judge Morallos issued an order, again declaring Alberto's motion submitted for resolution. But, because
Judge Morallos did not act on Alberto's pending motion, the latter filed a motion for early resolution.
Judge Morallos granted the same in an order of April 15, 2005 and declared the case submitted for
decision.
But Lim filed a motion for reconsideration of Judge Morallos' order, which motion Alberto
opposed. Judge Morallos declared the incident submitted for resolution on July 1, 2005; on October 5,
2005 Judge Morallos denied Lim's motion for lack of merit. Frustrated by the long delay in the resolution
of the case, Alberto again filed with the court a motion for early decision. Subsequently, he filed the
present complaint against Judge Morallos.
In his comment, Judge Morallos countered that Lim's motion for reconsideration could not be regarded
as the motion that the rules did not allow. Lim's motion sought to reconsider only the court's
interlocutory order of April 15, 2005, not any final order that it had issued. And considering that Lim
raised a good defense, Judge Morallos felt a need to hear the motion rather than deny it outright.
Judge Morallos admitted having resolved Alberto's motion for a judgment beyond the required period.
The judge, however, pleaded for compassion and understanding, claiming that he did not intend the
delay and that he had a heavy workload. As regards the main case, Judge Morallos said that he already
decided it on December 15, 2005. He also apologized for whatever inconvenience the delay may have
caused.
On May 3, 2006, Alberto filed a supplemental complaint

to amplify his charges. He said that the delay
was not only in the issuance of the December 15, 2005 decision; there was also delay in its posting in the
mail, a gross inefficiency. Further, Judge Morallos dismissed his action on ground of prematurity under
P.D. 1508 but this law had long been replied by Republic Act 7160 (also known as the Local Government
Code), demonstrating an abject ignorance of the law.
Commenting on the supplemental complaint, Judge Morallos explained that he incurred delay in
deciding Alberto's case because he had been pre-occupied with his new appointment as Regional Trial
Court (RTC) judge. As for the mailing delay, he already lost supervision over the work of the MeTC
mailing personnel after he took his oath as RTC judge on January 10, 2006. And, while he admits citing
the wrong law (P.D. 1508) when he dismissed Alberto's action, the reasoning behind it essentially
remained the same even under the amendatory provisions of R.A. 7160. Thus, his error cannot be
considered gross.
In its Report on January 24, 2007, the Office of the Court Administrator (OCA) rejected as unmeritorious
Judge Morallos explanation of his delay in deciding Alberto's unlawful detainer action. It thus
recommended that he be fined P10,000.00 for it. The OCA thought that, although Judge Morallos erred
in citing an already amended law, it did not regard the lapse as amounting to gross ignorance of the law.
It recommended admonition with warning.

The Issues Presented
The issues presented in this case are:
1. Whether or not Judge Morallos incurred unjustified delay in deciding Alberto's action; and
2. Whether or not Judge Morallos acted with gross ignorance of the law in citing an already repealed law
to substantiate his decision.

The Court's Rulings
The rules governing summary procedure enjoins Judge Morallos to decide Alberto's action within 30
days from the submission of the last affidavit and position paper. Judge Morallos failed to abide by this
rule and he admitted as much. His plea is for understanding, given his court's heavy workload and his
need to attend to the demands of his promotion as RTC judge.
This Court is not unmindful of the heavy caseloads that most trial judges carry on their shoulders. Still,
while mitigating under certain circumstances, it cannot excuse them from doing their mandated duty to
resolve cases with diligence and dispatch. Judges burdened with heavy caseloads should request the
Court to extend the time given them for deciding cases. Judge Morallos neglected making such
request. Under Section 9, Rule 140 of the Revised Rules of Court, undue delay in rendering a decision or
order is classified as a less serious offense and is punishable under Section 11 of the same Rule by
suspension from office without salary and other benefits for not less than one month nor more than
three months or a fine of more than P10,000.00 but not exceeding P20,000.00. Considering that this is
his first infraction, a fine of P5,000.00 will suffice.
[25]

As for Judge Morallos' error in citing an amended law to support what appears to be essentially the
same principle he relied on in deciding Alberto's case, such error cannot be regarded as amounting to
gross ignorance of the law which connotes an error so flagrant as to produce an inference of bad faith,
fraud, dishonesty, and corruption. This is not the case here.
WHEREFORE, for incurring undue delay in deciding Civil Case 10962, the Court FINES Judge Jose P.
Morallos in the sum of P5,000.00. Further, the Court ADMONISHES him to keep abreast of changes in
the laws.
SO ORDERED.










#5. G.R. No. 196870 : September 06, 2011]

BORACAY FOUNDATION, INC. VS. PROVINCE OF AKLAN, ET AL. ADVISORY
For the oral arguments scheduled on September 13, 2011 (Tuesday) at 2:00 p.m., each of the parties,
through counsel, shall have a maximum of twenty (20) minutes to present their respective arguments. In
case there is more than one lawyer for a particular party, the lead counsel shall decide on how to share
the allotted 20 minutes with co-counsel.cralaw
The time allotted for the counsels to argue and counter-argue shall be exclusive of the time devoted to
interpellation by the members of the Court.
The parties are directed to focus their respective discussions on the following issues:
I. Whether or not the petition is premature because Boracay Foundation. Inc. (petitioner) failed to
exhaust administrative remedies before filing this case
II. Whether or not respondent Province of Aklan (respondent Province) failed to perform a full
environmental impact assessment as required by laws and regulations based on the scope and
classification of the project
A. Whether or not the reclamation project to rehabilitate, renovate, and expand the
existing Caticlan jetty port in Malay ("the reclamation project") covers only 2.64
hectares
B. Whether or not the reclamation project has been expanded to forty (40) hectares to
include adjacent coastal areas in Caticlan with a portion thereof in Manoc-manoc,
Boracay Island
C. Whether the 2.64-hectare project is but a component of the expanded 40-hectare
reclamation project, which consists of several phases in two different sites, or is a "stand
alone project," which is separate and independent from the one involving an area of 40
hectares

III. What are the requirements under the pertinent laws and regulations that should be complied
with in order to undertake the project?
A. Whether or not the Environmental Compliance Certificate (ECC) which the respondent
Province obtained is sufficient to start the reclamation project
B. Whether or not a full, or programmatic, environmental impact assessment for a
reclamation project co-located within an environmentally critical area is required
C. Whether or not the classification under the Revised Procedural Manual for the
Department of Environment and Natural Resources (DENR) Administrative Order No. 30.
Series of 2003 insofar as it creates a category of non-environmentally critical projects in
environmentally critical areas, should be annulled

IV. Whether or not the reclamation of land bordering the strait between Caticlan and Boracay
would adversely affect the ecological balance of the area and the famed white sand beaches of
Boracay Island
V. Whether or not the respondent Philippine Reclamation Authority (PRA) issued a Notice to
Proceed for the reclamation project to respondent Province

VI. Whether or not there was proper, timely, and sufficient public consultation for the project,
under Sections 26 and 27 of the Local Government Code
A. Whether or not it is necessary for respondent Province to obtain the favorable
endorsement for the local governments units (LGUs) of Barangay Caticlan and Malay
Municipality before proceeding with the reclamation project.

B. Whether or not respondent Province was able to properly address the concerns of the
LGUs of Caticlan and Malay.

C. Whether or not the reclamation project best addresses the priority plan of both
respondent Province and the LGUs of Caticlan and Malay of having world-class land,
water, and air infrastructures to meet the needs of their booming tourism industry,
while maintaining the ecological balance in Boracay Island

VII. Whether or not the Temporary Environmental Protection Order (TEPO) issued by this Court on
June 9, 2011 may be dissolved
A. Whether or not the TEPOs continuance would cause irreparable damage to respondent
Province
B. Whether or not petitioner may be fully compensated for such damages it may
suffercralaw

Very truly yours,
(Sgd.) ENRIQUETA E. VIDAL
Clerk of Cour





#5. ORACAY FOUNDATION, INC., Petitioner,
Vs. THE PROVINCE OF AKLAN, REPRESENTED BY GOVERNOR CARLITO S. MARQUEZ, THE PHILIPPINE
RECLAMATION AUTHORITY, AND THE DENR-EMB (REGION VI), Respondents.
In resolving this controversy, the Court took into consideration that all the parties involved share
common goals in pursuit of certain primordial State policies and principles that are enshrined in the
Constitution and pertinent laws, such as the protection of the environment, the empowerment of the
local government units, the promotion of tourism, and the encouragement of the participation of the
private sector. The Court seeks to reconcile the respective roles, duties and responsibilities of the
petitioner and respondents in achieving these shared goals within the context of our Constitution, laws
and regulations.
Nature of the Case
This is an original petition for the issuance of an Environmental Protection Order in the nature of a
continuing mandamus under A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for
Environmental Cases, promulgated on April 29, 2010.
The Parties
Petitioner Boracay Foundation, Inc. (petitioner) is a duly registered, non-stock domestic
corporation. Its primary purpose is to foster a united, concerted and environment-conscious
development of Boracay Island, thereby preserving and maintaining its culture, natural beauty and
ecological balance, marking the island as the crown jewel of Philippine tourism, a prime tourist
destination in Asia and the whole world. It counts among its members at least sixty (60) owners and
representatives of resorts, hotels, restaurants, and similar institutions; at least five community
organizations; and several environmentally-conscious residents and advocates.
Respondent Province of Aklan (respondent Province) is a political subdivision of the government
created pursuant to Republic Act No. 1414, represented by Honorable Carlito S. Marquez, the Provincial
Governor (Governor Marquez).
Respondent Philippine Reclamation Authority (respondent PRA), formerly called the Public Estates
Authority (PEA), is a government entity created by Presidential Decree No. 1084, which states that one
of the purposes for which respondent PRA was created was to reclaim land, including foreshore and
submerged areas. PEA eventually became the lead agency primarily responsible for all reclamation
projects in the country under Executive Order No. 525, series of 1979. In June 2006, the President of the
Philippines issued Executive Order No. 543, delegating the power to approve reclamation projects to
PRA through its governing Board, subject to compliance with existing laws and rules and further subject
to the condition that reclamation contracts to be executed with any person or entity (must) go through
public bidding.
Respondent Department of Environment and Natural Resources Environmental Management
Bureau (DENR-EMB), Regional Office VI (respondent DENR-EMB RVI), is the government agency in the
Western Visayas Region authorized to issue environmental compliance certificates regarding projects
that require the environments protection and management in the region.
Summary of Antecedent Facts
Boracay Island (Boracay), a tropical paradise located in the Western Visayas region of the Philippines
and one of the countrys most popular tourist destinations, was declared a tourist zone and marine
reserve in 1973 under Presidential Proclamation No. 1801. The island comprises the barangays of
Manoc-manoc, Balabag, and Yapak, all within the municipality of Malay, in the province of Aklan.
Petitioner describes Boracay as follows:
Boracay is well-known for its distinctive powdery white-sand beaches which are the product of the
unique ecosystem dynamics of the area. The island itself is known to come from the uplifted remnants
of an ancient reef platform. Its beaches, the sandy land strip between the water and the area currently
occupied by numerous establishments, is the primary draw for domestic and international tourists for its
color, texture and other unique characteristics. Needless to state, it is the premier domestic and
international tourist destination in the Philippines.
More than a decade ago, respondent Province built the Caticlan Jetty Port and Passenger Terminal at
Barangay Caticlan to be the main gateway to Boracay. It also built the corresponding Cagban Jetty Port
and Passenger Terminal to be the receiving end for tourists in Boracay. Respondent Province operates
both ports to provide structural facilities suited for locals, tourists and guests and to provide safety and
security measures.

In 2005, Boracay 2010 Summit was held and participated in by representatives from national
government agencies, local government units (LGUs), and the private sector. Petitioner was one of the
organizers and participants thereto. The Summit aimed to re-establish a common vision of all
stakeholders to ensure the conservation, restoration, and preservation of Boracay Island and to
develop an action plan that [would allow] all sectors to work in concert among and with each other for
the long term benefit and sustainability of the island and the community. The Summit yielded a
Terminal Report stating that the participants had shared their dream of having world-class land, water
and air infrastructure, as well as given their observations that government support was lacking,
infrastructure was poor, and, more importantly, the influx of tourists to Boracay was increasing. The
Report showed that there was a need to expand the port facilities at Caticlan due to congestion in the
holding area of the existing port, caused by inadequate facilities, thus tourists suffered long queues
while waiting for the boat ride going to the island.
Respondent Province claimed that tourist arrivals to Boracay reached approximately 649,559 in 2009
and 779,666 in 2010, and this was expected to reach a record of 1 million tourist arrivals in the years to
come. Thus, respondent Province conceptualized the expansion of the port facilities at Barangay
Caticlan.


The Sangguniang Barangay of Caticlan, Malay Municipality, issued Resolution No. 13, s. 2008 on April
25, 2008 stating that it had learned that respondent Province had filed an application with the DENR for
a foreshore lease of areas along the shorelines of Barangay Caticlan, and manifesting its strong
opposition to said application, as the proposed foreshore lease practically covered almost all the
coastlines of said barangay, thereby technically diminishing its territorial jurisdiction, once granted, and
depriving its constituents of their statutory right of preference in the development and utilization of the
natural resources within its jurisdiction. The resolution further stated that respondent Province did not
conduct any consultations with the Sangguniang Barangay of Caticlan regarding the proposed foreshore
lease, which failure the Sanggunian considered as an act of bad faith on the part of respondent
Province.
On November 20, 2008, the Sangguniang Panlalawigan of respondent Province approved Resolution
No. 2008-369, formally authorizing Governor Marquez to enter into negotiations towards the possibility
of effecting self-liquidating and income-producing development and livelihood projects to be financed
through bonds, debentures, securities, collaterals, notes or other obligations as provided under Section
299 of the Local Government Code, with the following priority projects: (a) renovation/rehabilitation of
the Caticlan/Cagban Passenger Terminal Buildings and Jetty Ports; and (b) reclamation of a portion of
Caticlan foreshore for commercial purposes. This step was taken as respondent Provinces existing jetty
port and passenger terminal was funded through bond flotation, which was successfully redeemed and
paid ahead of the target date. This was allegedly cited as one of the LGUs Best Practices wherein
respondent Province was given the appropriate commendation.

Respondent Province included the proposed expansion of the port facilities at Barangay Caticlan in its
2009 Annual Investment Plan, envisioned as its project site the area adjacent to the existing jetty port,
and identified additional areas along the coastline of Barangay Caticlan as the site for future project
expansion.
Governor Marquez sent a letter to respondent PRA on March 12, 2009 expressing the interest of
respondent Province to reclaim about 2.64 hectares of land along the foreshores of Barangay Caticlan,
Municipality of Malay, Province of Aklan.
Sometime in April 2009, respondent Province entered into an agreement with the Financial
Advisor/Consultant that won in the bidding process held a month before, to conduct the necessary
feasibility study of the proposed project for the Renovation/Rehabilitation of the Caticlan Passenger
Terminal Building and Jetty Port, Enhancement and Recovery of Old Caticlan Coastline, and Reclamation
of a Portion of Foreshore for Commercial Purposes (the Marina Project), in Malay, Aklan.
Subsequently, on May 7, 2009, the Sangguniang Panlalawigan of respondent Province
issued Resolution No. 2009110, which authorized Governor Marquez to file an application to reclaim
the 2.64 hectares of foreshore area in Caticlan, Malay, Aklan with respondent PRA.
Sometime in July 2009, the Financial Advisor/Consultant came up with a feasibility study which
focused on the land reclamation of 2.64 hectares by way of beach enhancement and recovery of the old
Caticlan coastline for the rehabilitation and expansion of the existing jetty port, and for its future plans
the construction of commercial building and wellness center. The financial component of the said study
was Two Hundred Sixty Million Pesos (P260,000,000.00). Its suggested financing scheme was bond
flotation.
Meanwhile, the Sangguniang Bayan of the Municipality of Malay expressed its strong opposition to the
intended foreshore lease application, through Resolution No. 044, approved on July 22, 2009,
manifesting therein that respondent Provinces foreshore lease application was for business enterprise
purposes for its benefit, at the expense of the local government of Malay, which by statutory provisions
was the rightful entity to develop, utilize and reap benefits from the natural resources found within its
jurisdiction.
In August 2009, a Preliminary Geohazard Assessment for the enhancement/expansion of the existing
Caticlan Jetty Port and Passenger Terminal through beach zone restoration and Protective Marina
Developments in Caticlan, Malay, Aklan was completed.

Thereafter, Governor Marquez submitted an Environmental Performance Report and Monitoring
Program (EPRMP) to DENR-EMB RVI, which he had attached to his letter dated September 19, 2009, as
an initial step for securing an Environmental Compliance Certificate (ECC). The letter reads in part:
With the project expected to start its construction implementation next month, the province hereby
assures your good office that it will give preferential attention to and shall comply with whatever
comments that you may have on this EPRMP.
Respondent Province was then authorized to issue Caticlan Super Marina Bonds for the purpose of
funding the renovation of the Caticlan Jetty Port and Passenger Terminal Building, and the reclamation
of a portion of the foreshore lease area for commercial purposes in Malay, Aklan through Provincial
Ordinance No. 2009-013, approved on September 10, 2009. The said ordinance authorized Governor
Marquez to negotiate, sign and execute agreements in relation to the issuance of the Caticlan Super
Marina Bonds in the amount not exceeding P260,000,000.00.

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Subsequently, the Sangguniang Panlalawigan of the Province of Aklan issued Provincial Ordinance No.
2009-015 on October 1, 2009, amending Provincial Ordinance No. 2009-013, authorizing the bond
flotation of the Province of Aklan through Governor Marquez to fund the Marina Project and
appropriate the entire proceeds of said bonds for the project, and further authorizing Governor
Marquez to negotiate, sign and execute contracts or agreements pertinent to the transaction.

Within the same month of October 2009, respondent Province deliberated on the possible expansion
from its original proposed reclamation area of 2.64 hectares to forty (40) hectares in order to maximize
the utilization of its resources and as a response to the findings of the Preliminary Geohazard
Assessment study which showed that the recession and retreat of the shoreline caused by coastal
erosion and scouring should be the first major concern in the project site and nearby coastal area. The
study likewise indicated the vulnerability of the coastal zone within the proposed project site and the
nearby coastal area due to the effects of sea level rise and climate change which will greatly affect the
social, economic, and environmental situation of Caticlan and nearby Malay coastal communities.

In his letter dated October 22, 2009 addressed to respondent PRA, Governor Marquez wrote:

With our substantial compliance with the requirements under Administrative Order No. 2007-2 relative
to our request to PRA for approval of the reclamation of the [proposed Beach Zone Restoration and
Protection Marine Development in Barangays Caticlan and Manoc-Manoc] and as a result of our
discussion during the [meeting with the respondent PRA on October 12, 2009], may we respectfully
submit a revised Reclamation Project Description embodying certain revisions/changes in the size and
location of the areas to be reclaimed. x x x.

On another note, we are pleased to inform your Office that the bond flotation we have secured with the
Local Government Unit Guarantee Corporation (LGUGC) has been finally approved last October 14,
2009. This will pave the way for the implementation of said project. Briefly, the Province has been
recognized by the Bureau of Local Government Finance (BLGF) for its capability to meet its loan
obligations.

With the continued increase of tourists coming to Boracay through Caticlan, the Province is venturing
into such development project with the end in view of protection and/or restoring certain segments of
the shoreline in Barangays Caticlan (Caticlan side) and Manoc-manoc (Boracay side) which, as reported
by experts, has been experiencing tremendous coastal erosion.
For the project to be self-liquidating, however, we will be developing the reclaimed land for commercial
and tourism-related facilities and for other complementary uses.
Then, on November 19, 2009, the Sangguniang Panlalawigan enacted Resolution No. 2009-
299 authorizing Governor Marquez to enter into a Memorandum of Agreement (MOA) with respondent
PRA in the implementation of the Beach Zone Restoration and Protection Marina Development
Project, which shall reclaim a total of 40 hectares in the areas adjacent to the jetty ports at Barangay
Caticlan and Barangay Manoc-manoc. The Sangguniang Panlalawigan approved the terms and
conditions of the necessary agreements for the implementation of the bond flotation of respondent
Province to fund the renovation/rehabilitation of the existing jetty port by way of enhancement and
recovery of the Old Caticlan shoreline through reclamation of an area of 2.64 hectares in the amount
of P260,000,000.00 on December 1, 2009.
Respondent Province gave an initial presentation of the project with consultation to the Sangguniang
Bayan of Malay on December 9, 2009.
Respondent PRA approved the reclamation project on April 20, 2010 in its Resolution No. 4094 and
authorized its General Manager/Chief Executive Officer (CEO) to enter into a MOA with respondent
Province for the implementation of the reclamation project.

On April 27, 2010, DENR-EMB RVI issued to respondent Province ECC-R6-1003-096-7100 (the questioned
ECC) for Phase 1 of the Reclamation Project to the extent of 2.64 hectares to be done along the Caticlan
side beside the existing jetty port.
On May 17, 2010, respondent Province entered into a MOA with respondent PRA. Under Article III, the
Project was described therein as follows
The proposed Aklan Beach Zone Restoration and Protection Marina Development Project involves the
reclamation and development of approximately forty (40) hectares of foreshore and offshore areas of
the Municipality of Malay.
The land use development of the reclamation project shall be for commercial, recreational and
institutional and other applicable uses.
It was at this point that respondent Province deemed it necessary to conduct a series of what it calls
information-education campaigns, which provided the venue for interaction and dialogue with the
public, particularly the Barangay and Municipal officials of the Municipality of Malay, the residents of
Barangay Caticlan and Boracay, the stakeholders, and the non-governmental organizations (NGOs). The
details of the campaign are summarized as follows:
a. June 17, 2010 at Casa Pilar Beach Resort, Boracay Island, Malay, Aklan;
b. July 28, 2010 at Caticlan Jetty Port and Passenger Terminal;
c. July 31, 2010 at Barangay Caticlan Plaza;
d. September 15, 2010 at the Office of the Provincial Governor with Municipal Mayor of Malay
Mayor John P. Yap;
e. October 12, 2010 at the Office of the Provincial Governor with the Provincial Development
Council Executive Committee; and
f. October 29, 2010 at the Office of the Provincial Governor with Officials of LGU-Malay and
Petitioner.


Petitioner claims that during the public consultation meeting belatedly called by respondent Province
on June 17, 2010, respondent Province presented the Reclamation Project and only then detailed the
actions that it had already undertaken, particularly: the issuance of the Caticlan Super Marina Bonds;
the execution of the MOA with respondent PRA; the alleged conduct of an Environmental Impact
Assessment (EIA) study for the reclamation project; and the expansion of the project to forty (40)
hectares from 2.64 hectares.
In Resolution No. 046, Series of 2010, adopted on June 23, 2010, the Malay Municipality reiterated its
strong opposition to respondent Provinces project and denied its request for a favorable endorsement
of the Marina Project.
The Malay Municipality subsequently issued Resolution No. 016, Series of 2010, adopted on August 3,
2010, to request respondent PRA not to grant reclamation permit and notice to proceed to the Marina
Project of the [respondent] Provincial Government of Aklan located at Caticlan, Malay, Aklan.
In a letter dated October 12, 2010, petitioner informed respondent PRA of its opposition to the
reclamation project, primarily for the reason that, based on the opinion of Dr. Porfirio M. Alio, an
expert from the University of the Philippines Marine Science Institute (UPMSI), which he rendered based
on the documents submitted by respondent Province to obtain the ECC, a full EIA study is required to
assess the reclamation projects likelihood of rendering critical and lasting effect on Boracay considering
the proximity in distance, geographical location, current and wind direction, and many other
environmental considerations in the area. Petitioner noted that said documents had failed to deal with
coastal erosion concerns in Boracay. It also noted that respondent Province failed to comply with
certain mandatory provisions of the Local Government Code, particularly, those requiring the project
proponent to conduct consultations with stakeholders.
Petitioner likewise transmitted its Resolution No. 001, Series of 2010, registering its opposition to the
reclamation project to respondent Province, respondent PRA, respondent DENR-EMB, the National
Economic Development Authority Region VI, the Malay Municipality, and other concerned entities.
Petitioner alleges that despite the Malay Municipalitys denial of respondent Provinces request for
a favorable endorsement, as well as the strong opposition manifested both by Barangay Caticlan and
petitioner as an NGO, respondent Province still continued with the implementation of the Reclamation
Project.

On July 26, 2010, the Sangguniang Panlalawigan of respondent Province set aside Resolution No. 046,
s. 2010, of the Municipality of Malay and manifested its support for the implementation of the
aforesaid project through its Resolution No. 2010-022.
On July 27, 2010, the MOA was confirmed by respondent PRA Board of Directors under its Resolution
No. 4130. Respondent PRA wrote to respondent Province on October 19, 2010, informing the latter
toproceed with the reclamation and development of phase 1 of site 1 of its proposed project.
Respondent PRA attached to said letter its Evaluation Report dated October 18, 2010.
Petitioner likewise received a copy of respondent PRAs letter dated October 19, 2010, which authorized
respondent Province to proceed with phase 1 of the reclamation project, subject to compliance with the
requirements of its Evaluation Report. The reclamation project was described as:
*A+ seafront development involving reclamation of an aggregate area of more or less, forty (40)
hectares in two (2) separate sites both in Malay Municipality, Aklan Province. Site 1 is in Brgy. Caticlan
with a total area of 36.82 hectares and Site 2 in Brgy. Manoc-Manoc, Boracay Island with a total area
of 3.18 hectares. Sites 1 and 2 are on the opposite sides of Tabon Strait, about 1,200 meters apart.
The Sangguniang Panlalawigan of Aklan, through Resolution No. 2010-034, addressed the
apprehensions of petitioner embodied in its Resolution No. 001, s. 2010, and supported the
implementation of the project. Said resolution stated that the apprehensions of petitioner with regard
to the economic, social and political negative impacts of the projects were mere perceptions and
generalities and were not anchored on definite scientific, social and political studies.
In the meantime, a study was commissioned by the Philippine Chamber of Commerce and Industry-
Boracay (PCCI-Boracay), funded by the Department of Tourism (DOT) with the assistance of, among
others, petitioner. The study was conducted in November 2010 by several marine biologists/experts
from the Marine Environmental Resources Foundation (MERF) of the UPMSI. The study was intended to
determine the potential impact of a reclamation project in the hydrodynamics of the strait and on the
coastal erosion patterns in the southern coast of Boracay Island and along the coast of Caticlan.
After noting the objections of the respective LGUs of Caticlan and Malay, as well as the apprehensions of
petitioner, respondent Province issued a notice to the contractor on December 1, 2010 to commence
with the construction of the project.

On April 4, 2011, the Sangguniang Panlalawigan of Aklan, through its Committee on Cooperatives, Food,
Agriculture, and Environmental Protection and the Committee on Tourism, Trade, Industry and
Commerce, conducted a joint committee hearing wherein the study undertaken by the MERF-UPMSI
was discussed. In attendance were Mr. Ariel Abriam, President of PCCI-Boracay, representatives from
the Provincial Government, and Dr. Cesar Villanoy, a professor from the UPMSI. Dr. Villanoy said that
the subject project, consisting of 2.64 hectares, would only have insignificant effect on the
hydrodynamics of the strait traversing the coastline of Barangay Caticlan and Boracay, hence, there was
a distant possibility that it would affect the Boracay coastline, which includes the famous white-sand
beach of the island.
Thus, on April 6, 2011, the Sangguniang Panlalawigan of Aklan enacted Resolution No. 2011-065 noting
the report on the survey of the channel between Caticlan and Boracay conducted by the UPMSI in
relation to the effects of the ongoing reclamation to Boracay beaches, and stating that Dr. Villanoy had
admitted that nowhere in their study was it pointed out that there would be an adverse effect on the
white-sand beach of Boracay.
During the First Quarter Regular Meeting of the Regional Development Council, Region VI (RDC-VI) on
April 16, 2011, it approved and supported the subject project (covering 2.64 hectares) through RDC-VI
Resolution No. VI-26, series of 2011.
Subsequently, Mr. Abriam sent a letter to Governor Marquez dated April 25, 2011 stating that the study
conducted by the UPMSI confirms that the water flow across the Caticlan-Boracay channel is primarily
tide-driven, therefore, the marine scientists believe that the 2.64-hectare project of respondent
Province would not significantly affect the flow in the channel and would unlikely impact the Boracay
beaches. Based on this, PCCI-Boracay stated that it was not opposing the 2.64-hectare Caticlan
reclamation project on environmental grounds.



On June 1, 2011, petitioner filed the instant Petition for Environmental Protection Order/Issuance of the
Writ of Continuing Mandamus. On June 7, 2011, this Court issued a Temporary Environmental
Protection Order (TEPO) and ordered the respondents to file their respective comments to the petition.
[

After receiving a copy of the TEPO on June 9, 2011, respondent Province immediately issued an order to
the Provincial Engineering Office and the concerned contractor to cease and desist from conducting any
construction activities until further orders from this Court.
The petition is premised on the following grounds:



I.

THE RESPONDENT PROVINCE, PROPONENT OF THE RECLAMATION PROJECT, FAILED TO COMPLY WITH
RELEVANT RULES AND REGULATIONS IN THE ACQUISITION OF AN ECC.
A. THE RECLAMATION PROJECT IS CO-LOCATED WITHIN ENVIRONMENTALLY CRITICAL AREAS
REQUIRING THE PERFORMANCE OF A FULL, OR PROGRAMMATIC, ENVIRONMENTAL IMPACT
ASSESSMENT.
B. RESPONDENT PROVINCE FAILED TO OBTAIN THE FAVORABLE ENDORSEMENT OF THE LGU
CONCERNED.
C. RESPONDENT PROVINCE FAILED TO CONDUCT THE REQUIRED CONSULTATION PROCEDURES AS
REQUIRED BY THE LOCAL GOVERNMENT CODE.
D. RESPONDENT PROVINCE FAILED TO PERFORM A FULL ENVIRONMENTAL IMPACT ASSESSMENT AS
REQUIRED BY LAW AND RELEVANT REGULATIONS.
II. THE RECLAMATION OF LAND BORDERING THE STRAIT BETWEEN CATICLAN AND BORACAY SHALL
ADVERSELY AFFECT THE FRAIL ECOLOGICAL BALANCE OF THE AREA.
Petitioner objects to respondent Provinces classification of the reclamation project as single instead of
co-located, as non-environmentally critical, and as a mere rehabilitation of the existing jetty
port. Petitioner points out that the reclamation project is on two sites (which are situated on the
opposite sides of Tabon Strait, about 1,200 meters apart):
36.82 hectares Site 1, in Bgy. Caticlan
3.18 hectares Site 2, in Manoc-manoc, Boracay Island
Phase 1, which was started in December 2010 without the necessary permits, is located on the Caticlan
side of a narrow strait separating mainland Aklan from Boracay. In the implementation of the project,
respondent Province obtained only an ECC to conduct Phase 1, instead of an ECC on the entire 40
hectares. Thus, petitioner argues that respondent Province abused and exploited the Revised
Procedural Manual forDENR Administrative Order No. 30, Series of 2003 (DENR DAO 2003-30) relating
to the acquisition of an ECC by:
1. Declaring the reclamation project under Group II Projects-Non-ECP (environmentally critical
project) in ECA (environmentally critical area) based on the type and size of the area, and
2. Failing to declare the reclamation project as a co-located project application which would have
required the Province to submit a Programmatic Environmental Impact Statement (PEIS)
[
or
Programmatic Environmental [Performance] Report Management Plan (PE[P]RMP).
Petitioner further alleges that the Revised Procedural Manual (on which the classification above is
based, which merely requires an Environmental Impact Statement [EIS] for Group II projects) is
patently ultra vires, and respondent DENR-EMB RVI committed grave abuse of discretion because the
laws on EIS, namely, Presidential Decree Nos. 1151 and 1586, as well as Presidential Proclamation No.
2146, clearly indicate that projects in environmentally critical areas are to be immediately considered
environmentally critical. Petitioner complains that respondent
Province applied for an ECC only for Phase 1; hence, unlawfully
evading the requirement that co-located projects within Environmentally Critical Areas (ECAs) must
submit a PEIS and/or a PEPRMP.
Petitioner argues that respondent Province fraudulently classified and misrepresented the project as a
Non-ECP in an ECA, and as a single project instead of a co-located one. The impact assessment allegedly
performed gives a patently erroneous and wrongly-premised appraisal of the possible environmental
impact of the reclamation project. Petitioner contends that respondent Provinces choice of
classification was designed to avoid a comprehensive impact assessment of the reclamation project.

Petitioner further contends that respondent DENR-EMB RVI willfully and deliberately disregarded its
duty to ensure that the environment is protected from harmful developmental projects because it
allegedly performed only a cursory and superficial review of the documents submitted by the
respondent Province for an ECC, failing to note that all the information and data used by
respondent Province in its application for the ECC were all dated and not current, as data was gathered
in the late 1990s for the ECC issued in 1999 for the first jetty port. Thus, petitioner alleges that
respondent DENR-EMB RVI ignored the environmental impact to Boracay, which involves changes in the
structure of the coastline that could contribute to the changes in the characteristics of the sand in the
beaches of both Caticlan and Boracay.
Petitioner insists that reclamation of land at the Caticlan side will unavoidably adversely affect the
Boracay side and notes that the declared objective of the reclamation project is for the exploitation of
Boracays tourist trade, since the project is intended to enhance support services thereto. But,
petitioner argues, the primary reason for Boracays popularity is its white-sand beaches which will be
negatively affected by the project.
Petitioner alleges that respondent PRA had required respondent Province to obtain the favorable
endorsement of the LGUs of Barangay Caticlan and Malay Municipality pursuant to the consultation
procedures as required by the Local Government Code. Petitioner asserts that the reclamation project is
in violation not only of laws on EIS but also of the Local Government Code as respondent Province failed
to enter into proper consultations with the concerned LGUs. In fact, the Liga ng mga Barangay-Malay
Chapter also expressed strong opposition against the project.
Petitioner cites Sections 26 and 27 of the Local Government Code, which require consultations if the
project or program may cause pollution, climactic change, depletion of non-renewable
resources, etc. According to petitioner, respondent Province ignored the LGUs opposition expressed as
early as 2008. Not only that, respondent Province belatedly called for public consultation meetings on
June 17 and July 28, 2010, after an ECC had already been issued and the MOA between respondents PRA
and Province had already been executed. As the petitioner saw it, these were not consultations but
mere project presentations.
Petitioner claims that respondent Province, aided and abetted by respondents PRA and DENR-EMB,
ignored the spirit and letter of the Revised Procedural Manual, intended to implement the various
regulations governing the Environmental Impact Assessments (EIAs) to ensure that developmental
projects are in line with sustainable development of natural resources. The project was conceptualized
without considering alternatives.
Further, as to its allegation that respondent Province failed to perform a full EIA, petitioner argues
that while it is true that as of now, only the Caticlan side has been issued an ECC, the entire project
involves the Boracay side, which should have been considered a co-located project. Petitioner claims
that any project involving Boracay requires a full EIA since it is an ECA. Phase 1 of the project will
affect Boracay and Caticlan as they are separated only by a narrow strait; thus, it should be considered
an ECP. Therefore, the ECC and permit issued must be invalidated and cancelled.
Petitioner contends that a study shows that the flow of the water through a narrower channel due to
the reclamation project will likely divert sand transport off the southwest part of Boracay, whereas the
characteristic coast of the Caticlan side of the strait indicate stronger sediment transport. The white-
sand beaches of Boracay and its surrounding marine environment depend upon the natural flow of the
adjacent waters.
Regarding its claim that the reclamation of land bordering the strait between Caticlan and Boracay shall
adversely affect the frail ecological balance of the area, petitioner submits that while the study
conducted by the MERF-UPMSI only considers the impact of the reclamation project on the land, it is
undeniable that it will also adversely affect the already frail ecological balance of the area. The effect of
the project would have been properly assessed if the proper EIA had been performed prior to any
implementation of the project.
According to petitioner, respondent Provinces intended purposes do not prevail over its duty and
obligation to protect the environment. Petitioner believes that rehabilitation of the Jetty Port may be
done through other means.
In its Comment dated June 21, 2011, respondent Province claimed that application for reclamation of 40
hectares is advantageous to the Provincial Government considering that its filing fee would only cost
Php20,000.00 plus Value Added Tax (VAT) which is also the minimum fee as prescribed under Section
4.2 of Administrative Order No. 2007-2.
Respondent Province considers the instant petition to be premature; thus, it must necessarily fail for
lack of cause of action due to the failure of petitioner to fully exhaust the available administrative
remedies even before seeking judicial relief. According to respondent Province, the petition primarily
assailed the decision of respondent DENR-EMB RVI in granting the ECC for the subject project consisting
of 2.64 hectares and sought the cancellation of the ECC for alleged failure of respondent Province to
submit proper documentation as required for its issuance. Hence, the grounds relied upon by petitioner
can be addressed within the confines of administrative processes provided by law.
Respondent Province believes that under Section 5.4.3 of DENR Administrative Order No. 2003-30 (DAO
2003-30), the issuance of an ECC is an official decision of DENR-EMB RVI on the application of a project
proponent. It cites Section 6 of DENR DAO 2003-30, which provides for a remedy available to the party
aggrieved by the final decision on the proponents ECC applications.
Respondent Province argues that the instant petition is anchored on a wrong premise that results to
petitioners unfounded fears and baseless apprehensions. It is respondent Provinces contention that its
2.64-hectare reclamation project is considered as a stand alone project, separate and independent
from the approved area of 40 hectares. Thus, petitioner should have observed the difference between
the future development plan of respondent Province from its actual project being undertaken.
Respondent Province clearly does not dispute the fact that it revised its original application to
respondent PRA from 2.64 hectares to 40 hectares. However, it claims that such revision is part of
its future plan, and implementation thereof is still subject to availability of funds, independent
scientific environmental study, separate application of ECC and notice to proceed to be issued by
respondent PRA.
Respondent Province goes on to claim that *p+etitioners version of the Caticlan jetty port expansion
project is a bigger project which is still at the conceptualization stage. Although this project was
described in theNotice to Proceed issued by respondent PRA to have two phases, 36.82 hectares in
Caticlan and 3.18 hectares in Boracay [Island,] it is totally different from the [ongoing] Caticlan jetty port
expansion project.
Respondent Province says that the Accomplishment Report of its Engineering Office would attest that
the actual project consists of 2.64 hectares only, as originally planned and conceptualized, which was
even reduced to 2.2 hectares due to some construction and design modifications.
Thus, respondent Province alleges that from its standpoint, its capability to reclaim is limited to 2.64
hectares only, based on respondent PRAs Evaluation Report dated October 18, 2010, which was in turn
the basis of the issuance of the Notice to Proceed dated October 19, 2010, because the projects
financial component is P260,000,000.00 only. Said Evaluation Report indicates that the implementation
of the other phases of the project including site 2, which consists of the other portions of the 40-hectare
area that includes a portion in Boracay, is still within the 10-year period and will depend largely on the
availability of funds of respondent Province.
So, even if respondent PRA approved an area that would total up to 40 hectares, it was divided into
phases in order to determine the period of its implementation. Each phase was separate and
independent because the source of funds was also separate. The required documents and requirements
were also specific for each phase. The entire approved area of 40 hectares could be implemented
within a period of 10 years but this would depend solely on the availability of funds.

As far as respondent Province understands it, additional reclamations not covered by the ECC, which
only approved 2.64 hectares, should undergo another EIA. If respondent Province intends to commence
the construction on the other component of the 40 hectares, then it agrees that it is mandated to secure
a new ECC.
Respondent Province admits that it dreamt of a 40-hectare project, even if it had originally planned and
was at present only financially equipped and legally compliant to undertake 2.64 hectares of the project,
and only as an expansion of its old jetty port.
Respondent Province claims that it has complied with all the necessary requirements for securing an
ECC. On the issue that the reclamation project is within an ECA requiring the performance of a full or
programmatic EIA, respondent Province reiterates that the idea of expanding the area to 40 hectares is
only a future plan. It only secured an ECC for 2.64 hectares, based on the limits of its funding and
authority. From the beginning, its intention was to rehabilitate and expand the existing jetty port
terminal to accommodate an increasing projected traffic. The subject project is specifically classified
under DENR DAO 2003-30 on its Project Grouping Matrix for Determination of EIA Report Type
considered as Minor Reclamation Projects falling under Group II Non ECP in an ECA. Whether 2.64 or
40 hectares in area, the subject project falls within this classification.
Consequently, respondent Province claims that petitioner erred in considering the ongoing reclamation
project at Caticlan, Malay, Aklan, as co-located within an ECA.
Respondent Province, likewise argues that the 2.64-hectare project is not a component of the approved
40-hectare area as it is originally planned for the expansion site of the existing Caticlan jetty port. At
present, it has no definite conceptual construction plan of the said portion in Boracay and it has no
financial allocation to initiate any project on the said Boracay portion.
Furthermore, respondent Province contends that the present project is located in Caticlan while the
alleged component that falls within an ECA is in Boracay. Considering its geographical location, the two
sites cannot be considered as a contiguous area for the reason that it is separated by a body of water a
strait that traverses between the mainland Panay wherein Caticlan is located and Boracay. Hence, it is
erroneous to consider the two sites as a co-located project within an ECA. Being a stand alone project
and an expansion of the existing jetty port, respondent DENR-EMB RVI had required respondent
Province to perform an EPRMP to secure an ECC as sanctioned by Item No. 8(b), page 7 of DENR DAO
2003-30.

Respondent Province contends that even if, granting for the sake of argument, it had erroneously
categorized its project as Non-ECP in an ECA, this was not a final determination. Respondent DENR-EMB
RVI, which was the administrator of the EIS system, had the final decision on this matter. Under DENR
DAO 2003-30, an application for ECC, even for a Category B2 project where an EPRMP is conducted,
shall be subjected to a review process. Respondent DENR-EMB RVI had the authority to deny said
application. Its Regional Director could either issue an ECC for the project or deny the application. He
may also require a more comprehensive EIA study. The Regional Director issued the ECC based on the
EPRMP submitted by respondent Province and after the same went through the EIA review process.
Thus, respondent Province concludes that petitioners allegation of this being a co-located project is
premature if not baseless as the bigger reclamation project is still on the conceptualization stage. Both
respondents PRA and Province are yet to complete studies and feasibility studies to embark on another
project.
Respondent Province claims that an ocular survey of the reclamation project revealed that it had
worked within the limits of the ECC.
With regard to petitioners allegation that respondent Province failed to get the favorable endorsement
of the concerned LGUs in violation of the Local Government Code, respondent Province contends that
consultation vis--vis the favorable endorsement from the concerned LGUs as contemplated under the
Local Government Code are merely tools to seek advice and not a power clothed upon the LGUs to
unilaterally approve or disapprove any government projects. Furthermore, such endorsement is not
necessary for projects falling under Category B2 unless required by the DENR-EMB RVI, under Section
5.3 of DENR DAO 2003-30.
Moreover, DENR Memorandum Circular No. 08-2007 no longer requires the issuance of permits and
certifications as a pre-requisite for the issuance of an ECC. Respondent Province claims to have
conducted consultative activities with LGUs in connection with Sections 26 and 27 of the Local
Government Code. The vehement and staunch objections of both the Sangguniang Barangay of
Caticlan and the Sangguniang Bayanof Malay, according to respondent Province, were not rooted on its
perceived impact upon the people and the community in terms of environmental or ecological balance,
but due to an alleged conflict with their principal position to develop, utilize and reap benefits from the
natural resources found within its jurisdiction.
[93]
Respondent Province argues that these concerns are
not within the purview of the Local Government Code. Furthermore, the Preliminary Geohazard
Assessment Report and EPRMP as well as Sangguniang Panlalawigan Resolution Nos. 2010-022 and
2010-034 should address any environmental issue they may raise.
Respondent Province posits that the spirit and intent of Sections 26 and 27 of the Local Government
Code is to create an avenue for parties, the proponent and the LGU concerned, to come up with a tool in
harmonizing its views and concerns about the project. The duty to consult does not automatically
require adherence to the opinions during the consultation process. It is allegedly not within the
provisions to give the full authority to the LGU concerned to unilaterally approve or disapprove the
project in the guise of requiring the proponent of securing its favorable endorsement. In this case,
petitioner is calling a halt to the project without providing an alternative resolution to harmonize its
position and that of respondent Province.
Respondent Province claims that the EPRMP
[94]
would reveal that:
[T]he area fronting the project site is practically composed of sand. Dead coral communities may be
found along the vicinity. Thus, fish life at the project site is quite scarce due to the absence of marine
support systems like the sea grass beds and coral reefs.
x x x [T]here is no coral cover at the existing Caticlan jetty port. [From] the deepest point of jetty to the
shallowest point, there was no more coral patch and the substrate is sandy. It is of public knowledge
that the said foreshore area is being utilized by the residents ever since as berthing or anchorage site of
their motorized banca. There will be no possibility of any coral development therein because of its
continuous utilization. Likewise, the activity of the strait that traverses between the main land Caticlan
and Boracay Island would also be a factor of the coral development. Corals [may] only be formed within
the area if there is scientific human intervention, which is absent up to the present.
In light of the foregoing premise, it casts serious doubt on petitioners allegations pertaining to the
environmental effects of Respondent-LGUs 2.64 hectares reclamation project. The alleged
environmental impact of the subject project to the beaches of Boracay Island remains unconfirmed.
Petitioner had unsuccessfully proven that the project would cause imminent, grave and irreparable
injury to the community.
Respondent Province prayed for the dissolution of the TEPO, claiming that the rules provide that the
TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause
irreparable damage to the party or person enjoined, while the applicant may be fully compensated for
such damages as he may suffer and subject to the posting of a sufficient bond by the party or person
enjoined. Respondent Province contends that the TEPO would cause irreparable damage in two
aspects:
a. Financial dislocation and probable bankruptcy; and
b. Grave and imminent danger to safety and health of inhabitants of immediate area, including
tourists and passengers serviced by the jetty port, brought about by the abrupt cessation of
development works.
As regards financial dislocation, the arguments of respondent Province are summarized below:
1. This project is financed by bonds which the respondent Province had issued to its creditors as the
financing scheme in funding the present project is by way of credit financing through bond flotation.
2. The funds are financed by a Guarantee Bank getting payment from bonds, being sold to
investors, which in turn would be paid by the income that the project would realize or incur upon its
completion.
3. While the project is under construction, respondent Province is appropriating a portion of its
Internal Revenue Allotment (IRA) budget from the 20% development fund to defray the interest and
principal amortization due to the Guarantee Bank.
4. The respondent Provinces IRA, regular income, and/or such other revenues or funds, as may be
permitted by law, are being used as security for the payment of the said loan used for the projects
construction.
5. The inability of the subject project to earn revenues as projected upon completion will compel the
Province to shoulder the full amount of the obligation, starting from year 2012.
6. Respondent province is mandated to assign its IRA, regular income and/or such other revenues or
funds as permitted by law; if project is stopped, detriment of the public welfare and its constituents.
[96]

As to the second ground for the dissolution of the TEPO, respondent Province argues:
1. Non-compliance with the guidelines of the ECC may result to environmental hazards most
especially that reclaimed land if not properly secured may be eroded into the sea.

2. The construction has accomplished 65.26 percent of the project. The embankment that was
deposited on the project has no proper concrete wave protection that might be washed out in the event
that a strong typhoon or big waves may occur affecting the strait and the properties along the project
site. It is already the rainy season and there is a big possibility of typhoon occurrence.
3. If said incident occurs, the aggregates of the embankment that had been washed out might be
transferred to the adjoining properties which could affect its natural environmental state.
4. It might result to the total alteration of the physical landscape of the area attributing to
environmental disturbance.
5. The lack of proper concrete wave protection or revetment would cause the total erosion of the
embankment that has been dumped on the accomplished area.
[97]

Respondent Province claims that petitioner will not stand to suffer immediate, grave and irreparable
injury or damage from the ongoing project. The petitioners perceived fear of environmental destruction
brought about by its erroneous appreciation of available data is unfounded and does not translate into a
matter of extreme urgency. Thus, under the Rules of Procedure on Environmental Cases, the TEPO may
be dissolved.
Respondent PRA filed its Comment on June 22, 2011. It alleges that on June 24, 2006, Executive Order
No. 543 delegated the power to approve reclamation projects to respondent PRA through its governing
Board, subject to compliance with existing laws and rules and further subject to the condition that
reclamation contracts to be executed with any person or entity (must) go through public bidding.
Section 4 of respondent PRAs Administrative Order No. 2007-2 provides for the approval process and
procedures for various reclamation projects to be undertaken. Respondent PRA prepared an Evaluation
Report on November 5, 2009 regarding Aklans proposal to increase its project to 40 hectares.
Respondent PRA contends that it was only after respondent Province had complied with the
requirements under the law that respondent PRA, through its Board of Directors, approved the
proposed project under its Board Resolution No. 4094.
[100]
In the same Resolution, respondent PRA
Board authorized the General Manager/CEO to execute a MOA with the Aklan provincial government to
implement the reclamation project under certain conditions.

The issue for respondent PRA was whether or not it approved the respondent Provinces 2.64-hectare
reclamation project proposal in willful disregard of alleged numerous irregularities as claimed by
petitioner.
Respondent PRA claims that its approval of the Aklan Reclamation Project was in accordance with law
and its rules. Indeed, it issued the notice to proceed only after Aklan had complied with all the
requirements imposed by existing laws and regulations. It further contends that the 40 hectares
involved in this project remains a plan insofar as respondent PRA is concerned. What has been
approved for reclamation by respondent PRA thus far is only the 2.64-hectare reclamation
project. Respondent PRA reiterates that it approved this reclamation project after extensively reviewing
the legal, technical, financial, environmental, and operational aspects of the proposed reclamation.
[102]

One of the conditions that respondent PRA Board imposed before approving the Aklan project was that
no reclamation work could be started until respondent PRA has approved the detailed engineering
plans/methodology, design and specifications of the reclamation. Part of the required submissions to
respondent PRA includes the drainage design as approved by the Public Works Department and the ECC
as issued by the DENR, all of which the Aklan government must submit to respondent PRA before
starting any reclamation works.
[103]
Under Article IV(B)(3) of the MOA between respondent PRA and
Aklan, the latter is required to submit, apart from the ECC, the following requirements for respondent
PRAs review and approval, as basis for the issuance of a Notice to Proceed (NTP) for Reclamation
Works:
(a) Land-form plan with technical description of the metes and bounds of the same land-form;
(b) Final master development and land use plan for the project;
(c) Detailed engineering studies, detailed engineering design, plans and specification for
reclamation works, reclamation plans and methodology, plans for the sources of fill materials;
(d) Drainage plan vis-a-vis the land-form approved by DPWH Regional Office to include a cost
effective and efficient drainage system as may be required based on the results of the studies;
(e) Detailed project cost estimates and quantity take-off per items of work of the rawland
reclamation components, e.g. reclamation containment structures and soil consolidation;
(f) Organizational chart of the construction arm, manning table, equipment schedule for the
project; and,
(g) Project timetable (PERT/CPM) for the entire project construction period.
[104]

In fact, respondent PRA further required respondent Province under Article IV (B)(24) of the MOA
to strictly comply with all conditions of the DENR-EMB-issued ECC and/or comply with pertinent local
and international commitments of the Republic of the Philippines to ensure environmental protection.
In its August 11, 2010 letter,
[106]
respondent PRA referred for respondent Provinces appropriate
action petitioners Resolution 001, series of 2010 and Resolution 46, series of 2010, of the Sangguniang
Bayan of Malay. Governor Marquez wrote respondent PRA
[107]
on September 16, 2010 informing it that
respondent Province had already met with the different officials of Malay, furnishing respondent PRA
with the copies of the minutes of such meetings/presentations. Governor Marquez also assured
respondent PRA that it had complied with the consultation requirements as far as Malay was
concerned.
Respondent PRA claims that in evaluating respondent Provinces project and in issuing the
necessary NTP for Phase 1 of Site 1 (2.64 hectares) of the Caticlan Jetty Port expansion and
modernization, respondent PRA gave considerable weight to all pertinent issuances, especially the ECC
issued by DENR-EMB RVI.
[108]
Respondent PRA stresses that its earlier approval of the 40-hectare
reclamation project under its Resolution No. 4094, series of 2010, still requires a second level of
compliance requirements from the proponent. Respondent Province could not possibly begin its
reclamation works since respondent PRA had yet to issue an NTP in its favor.
Respondent PRA alleges that prior to the issuance of the NTP to respondent Province for Phase 1
of Site 1, it required the submission of the following pre-construction documents:
(a) Land-Form Plan (with technical description);
(b) Site Development Plan/Land Use Plan including,
(i) sewer and drainage systems and
(ii) waste water treatment;
(c) Engineering Studies and Engineering Design;
(d) Reclamation Methodology;
(e) Sources of Fill Materials, and,
(f) The ECC.
Respondent PRA claims that it was only after the evaluation of the above submissions that it issued
to respondent Province the NTP, limited to the 2.64-hectare reclamation project. Respondent PRA even
emphasized in its evaluation report that should respondent Province pursue the other phases of its
project, it would still require the submission of an ECC for each succeeding phases before the start of
any reclamation works.
Respondent PRA, being the national governments arm in regulating and coordinating all
reclamation projects in the Philippines a mandate conferred by law manifests that it is incumbent
upon it, in the exercise of its regulatory functions, to diligently evaluate, based on its technical
competencies, all reclamation projects submitted to it for approval. Once the reclamation projects
requirements set forth by law and related rules have been complied with, respondent PRA is mandated
to approve the same. Respondent PRA claims, *w+ith all the foregoing rigorous and detailed
requirements submitted and complied with by Aklan, and the attendant careful and meticulous
technical and legal evaluation by respondent PRA, it cannot be argued that the reclamation permit it
issued to Aklan is founded upon numerous irregularities; as recklessly and baselessly imputed by BFI.
In its Comment dated July 1, 2011, respondent DENR-EMB RVI asserts that its act of issuing the
ECC certifies that the project had undergone the proper EIA process by assessing, among others, the
direct and indirect impact of the project on the biophysical and human environment and ensuring that
these impacts are addressed by appropriate environmental protection and enhancement measures,
pursuant to Presidential Decree No. 1586, the Revised Procedural Manual for DENR DAO 2003-30, and
the existing rules and regulations.
Respondent DENR-EMB RVI stresses that the declaration in 1978 of several islands, which includes
Boracay as tourist zone and marine reserve under Proclamation No. 1801, has no relevance to the
expansion project of Caticlan Jetty Port and Passenger Terminal for the very reason that the project is
not located in the Island of Boracay, being located in Barangay Caticlan, Malay, which is not a part of
mainland Panay. It admits that the site of the subject jetty port falls within the ECA under Proclamation
No. 2146 (1981), being within the category of a water body. This was why respondent Province had
faithfully secured an ECC pursuant to the Revised Procedural Manual for DENR DAO 2003-30 by
submitting the necessary documents as contained in the EPRMP on March 19, 2010, which were the
bases in granting ECC No. R6-1003-096-7100 (amended) on April 27, 2010 for the expansion of Caticlan
Jetty Port and Passenger Terminal, covering 2.64 hectares.
[114]

Respondent DENR-EMB RVI claims that the issues raised by the LGUs of Caticlan and Malay had
been considered by the DENR-Provincial Environment and Natural Resources Office (PENRO), Aklan in
the issuance of the Order
[115]
dated January 26, 2010, disregarding the claim of the Municipality of
Malay, Aklan of a portion of the foreshore land in Caticlan covered by the application of the Province of
Aklan; and another Order of Rejection dated February 5, 2010 of the two foreshore applications, namely
FLA No. 060412-43A and FLA No. 060412-43B, of the Province of Aklan.
[116]

Respondent DENR-EMB RVI contends that the supporting documents attached to the EPRMP for
the issuance of an ECC were merely for the expansion and modernization of the old jetty port in
Barangay Caticlan covering 2.64 hectares, and not the 40-hectare reclamation project in Barangay
Caticlan and Boracay. The previous letter of respondent Province dated October 14, 2009 addressed to
DENR-EMB RVI Regional Executive Director, would show that the reclamation project will cover
approximately 2.6 hectares.
[117]
This application for ECC was not officially accepted due to lack of
requirements or documents.
Although petitioner insists that the project involves 40 hectares in two sites, respondent DENR-EMB RVI
looked at the documents submitted by respondent Province and saw that the subject area covered by
the ECC application and subsequently granted with ECC-R6-1003-096-7100 consists only of 2.64
hectares; hence, respondent DENR-EMB RVI could not comment on the excess area.
[118]

Respondent DENR-EMB RVI admits that as regards the classification of the 2.64-hectare reclamation
project under Non ECP in ECA, this does not fall within the definition of a co-located project because
the subject project is merely an expansion of the old Caticlan Jetty Port, which had a previously issued
ECC (ECC No. 0699-1012-171 on October 12, 1999). Thus, only an EPRMP, not a PEIS or PEPRMP, is
required.
[119]


Respondent Province submitted to respondent DENR-EMB RVI the following documents contained in the
EPRMP:
a. The Observations on the Floor Bottom and its Marine Resources at the Proposed Jetty Ports at
Caticlan and Manok-manok, Boracay, Aklan, conducted in 1999 by the Bureau of Fisheries Aquatic
Resources (BFAR) Central Office, particularly in Caticlan site, and
b. The Study conducted by Dr. Ricarte S. Javelosa, Ph. D, Mines and Geosciences Bureau (MGB),
Central Office and Engr. Roger Esto, Provincial Planning and Development Office (PPDO), Aklan in 2009
entitled Preliminary Geo-hazard Assessment for the Enhancement of the Existing Caticlan Jetty Port
Terminal through Beach Zone Restoration and Protective Marina Development in Malay, Aklan.
Respondent DENR-EMB RVI claims that the above two scientific studies were enough for it to arrive at a
best professional judgment to issue an amended ECC for the Aklan Marina Project covering 2.64
hectares.
[120]
Furthermore, to confirm that the 2.64-hectare reclamation has no significant negative
impact with the surrounding environment particularly in Boracay, a more recent study was conducted,
and respondent DENR-EMB RVI alleges that *i+t is very important to highlight that the input data in the
[MERF- UPMSI] study utilized the [40-hectare] reclamation and [200-meter] width seaward using the
tidal and wave modelling.
[121]
The study showed that the reclamation of 2.64 hectares had no effect to
the hydrodynamics of the strait between Barangay Caticlan and Boracay.
Respondent DENR-EMB RVI affirms that no permits and/or clearances from National Government
Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No. 2007-08,
entitled Simplifying the Requirements of ECC or CNC Applications; that the EPRMP was evaluated and
processed based on the Revised Procedural Manual for DENR DAO 2003-30 which resulted to the
issuance of ECC-R6-1003-096-7100; and that the ECC is not a permit per se but a planning tool for LGUs
to consider in its decision whether or not to issue a local permit.
[122]

Respondent DENR-EMB RVI concludes that in filing this case, petitioner had bypassed and deprived the
DENR Secretary of the opportunity to review and/or reverse the decision of his subordinate office, EMB
RVI pursuant to the Revised Procedural Manual for DENR DAO 2003-30. There is no extreme urgency
that necessitates the granting of Mandamus or issuance of TEPO that put to balance between the life
and death of the petitioner or present grave or irreparable damage to environment.
[123]


After receiving the above Comments from all the respondents, the Court set the case for oral arguments
on September 13, 2011.
Meanwhile, on September 8, 2011, respondent Province filed a Manifestation and Motion
[124]
praying
for the dismissal of the petition, as the province was no longer pursuing the implementation of the
succeeding phases of the project due to its inability to comply with Article IV B.2(3) of the MOA; hence,
the issues and fears expressed by petitioner had become moot. Respondent Province alleges that the
petition is premised on a serious misappreciation of the real extent of the contested reclamation
project as certainly the ECC covered only a total of 2,691 square meters located in Barangay Caticlan,
Malay, Aklan; and although the MOA spoke of 40 hectares, respondent Provinces submission of
documents to respondent PRA pertaining to said area was but the first of a two-step process of
approval. Respondent Province claims that its failure to comply with the documentary requirements of
respondent PRA within the period provided, or 120 working days from the effectivity of the MOA,
indicated its waiver to pursue the remainder of the project.
[125]
Respondent Province further manifested:
Confirming this in a letter dated 12 August 2011,
[126]
Governor Marquez informed respondent PRA that
the Province of Aklan is no longer pursuing the implementation of the succeeding phases of the project
with a total area of 37.4 hectares for our inability to comply with Article IV B.2 (3) of the MOA; hence,
the existing MOA will cover only the project area of 2.64 hectares.
In his reply-letter dated August 22, 2011,
[127]
[respondent] PRA General Manager informed Governor
Marquez that the [respondent] PRA Board of Directors has given [respondent] PRA the authority to
confirm the position of the Province of Aklan that the Aklan Beach Zone Restoration and Protection
Marine Development Project will now be confined to the reclamation and development of the 2.64
hectares, more or less.
It is undisputed from the start that the coverage of the Project is in fact limited to 2.64 hectares, as
evidenced by the NTP issued by respondent PRA. The recent exchange of correspondence between
respondents Province of Aklan and [respondent] PRA further confirms the intent of the parties all along.
Hence, the Project subject of the petition, without doubt, covers only 2.64 and not 40 hectares as
feared. This completely changes the extent of the Project and, consequently, moots the issues and fears
expressed by the petitioner.
Based on the above contentions, respondent Province prays that the petition be dismissed as no further
justiciable controversy exists since the feared adverse effect to Boracay Islands ecology had become
academic all together.
[129]


The Court heard the parties oral arguments on September 13, 2011 and gave the latter twenty (20) days
thereafter to file their respective memoranda.
Respondent Province filed another Manifestation and Motion,
[130]
which the Court received on April 2,
2012 stating that:
1. it had submitted the required documents and studies to respondent DENR-EMB RVI before
an ECC was issued in its favor;
2. it had substantially complied with the requirements provided under PRA Administrative
Order 2007-2, which compliance caused respondent PRAs Board to approve the reclamation project;
and
3. it had conducted a series of consultative *presentations+ relative to the reclamation
project before the LGU of Malay Municipality, the Barangay Officials of Caticlan, and stakeholders of
Boracay Island.
Respondent Province further manifested that the Barangay Council of Caticlan, Malay, Aklan enacted on
February 13, 2012 Resolution No. 003, series of 2012, entitled Resolution Favorably Endorsing the 2.6
Hectares Reclamation/MARINA Project of the Aklan Provincial Government at Caticlan Coastline
[131]
and
that the Sangguniang Bayan of the Municipality of Malay, Aklan enacted Resolution No. 020, series of
2012, entitled Resolution Endorsing the 2.6 Hectares Reclamation Project of the Provincial Government
of Aklan Located at Barangay Caticlan, Malay, Aklan.
[132]

Respondent Province claims that its compliance with the requirements of respondents DENR-EMB RVI
and PRA that led to the approval of the reclamation project by the said government agencies, as well as
the recent enactments of the Barangay Council of Caticlan and the Sangguniang Bayan of the
Municipality of Malay favorably endorsing the said project, had categorically addressed all the issues
raised by the Petitioner in its Petition dated June 1, 2011. Respondent Province prays as follows:
WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that after due
proceedings, the following be rendered:
1. The Temporary Environmental Protection Order (TEPO) it issued on June 7, 2011 be
lifted/dissolved.
2. The instant petition be dismissed for being moot and academic.
3. Respondent Province of Aklan prays for such other reliefs that are just and equitable under the
premises. (Emphases in the original.)


ISSUES
The Court will now resolve the following issues:
I. Whether or not the petition should be dismissed for having been rendered moot and
academic
II. Whether or not the petition is premature because petitioner failed to exhaust administrative
remedies before filing this case
III. Whether or not respondent Province failed to perform a full EIA as required by laws and
regulations based on the scope and classification of the project
IV. Whether or not respondent Province complied with all the requirements under the pertinent
laws and regulations
V. Whether or not there was proper, timely, and sufficient public consultation for the project
DISCUSSION
On the issue of whether or not the Petition should be dismissed for having been rendered moot and
academic
Respondent Province claims in its Manifestation and Motion filed on April 2, 2012 that with the alleged
favorable endorsement of the reclamation project by theSangguniang Barangay of Caticlan and
the Sangguniang Bayan of the Municipality of Malay, all the issues raised by petitioner had already
been addressed, and this petition should be dismissed for being moot and academic.

On the contrary, a close reading of the two LGUs respective resolutions would reveal that they are not
sufficient to render the petition moot and academic, as there are explicit conditions imposed that must
be complied with by respondent Province. In Resolution No. 003, series of 2012, of the Sangguniang
Barangay of Caticlan it is stated thatany vertical structures to be constructed shall be subject
for barangay endorsement.
[133]
Clearly, what the barangay endorsed was the reclamation only, and not
the entire project that includes the construction of a commercial building and wellness center, and
other tourism-related facilities. Petitioners objections, as may be recalled, pertain not only to the
reclamation per se, but also to the building to be constructed and the entire projects perceived ill
effects to the surrounding environment.
Resolution No. 020, series of 2012, of the Sangguniang Bayan of Malay
[134]
is even more specific. It
reads in part:
WHEREAS, noble it seems the reclamation project to the effect that it will generate scores of benefits
for the Local Government of Malay in terms of income and employment for its constituents, but the fact
cannot be denied that the project will take its toll on the environment especially on the nearby fragile
island of Boracay and the fact also remains that the project will eventually displace the local
transportation operators/cooperatives;
WHEREAS, considering the sensitivity of the project, this Honorable Body through the Committee where
this matter was referred conducted several consultations/committee hearings with concerned
departments and the private sector specifically Boracay Foundation, Inc. and they are one in its belief
that this Local Government Unit has never been against development so long as compliance with the
law and proper procedures have been observed and that paramount consideration have been given to
the environment lest we disturb the balance of nature to the end that progress will be brought to
naught;
WHEREAS, time and again, to ensure a healthy intergovernmental relations, this August Body requires
no less than transparency and faithful commitment from the Provincial Government of Aklan in the
process of going through these improvements in the Municipality because it once fell prey to infidelities
in matters of governance;
WHEREAS, as a condition for the grant of this endorsement and to address all issues and concerns, this
Honorable Council necessitates a sincere commitment from the Provincial Government of Aklan to the
end that:
1. To allocate an office space to LGU-Malay within the building in the reclaimed area;
2. To convene the Cagban and Caticlan Jetty Port Management Board before the resumption of the
reclamation project;
3. That the reclamation project shall be limited only to 2.6 hectares in Barangay Caticlan and not
beyond;
4. That the local transportation operators/cooperatives will not be displaced; and
5. The Provincial Government of Aklan conduct a simultaneous comprehensive study on the
environmental impact of the reclamation project especially during Habagat and Amihan seasons and
put in place as early as possible mitigating measures on the effect of the project to the environment.
WHEREAS, having presented these stipulations, failure to comply herewith will leave this August Body
no choice but to revoke this endorsement, hence faithful compliance of the commitment of the
Provincial Government is highly appealed for[.]
[135]
(Emphases added.)
The Sangguniang Bayan of Malay obviously imposed explicit conditions for respondent Province to
comply with on pain of revocation of its endorsement of the project, including the need to conduct a
comprehensive study on the environmental impact of the reclamation project, which is the heart of the
petition before us. Therefore, the contents of the two resolutions submitted by respondent Province do
not support its conclusion that the subsequent favorable endorsement of the LGUs had already
addressed all the issues raised and rendered the instant petition moot and academic.
On the issue of failure to exhaust administrative remedies
Respondents, in essence, argue that the present petition should be dismissed for petitioners failure to
exhaust administrative remedies and even to observe the hierarchy of courts. Furthermore, as the
petition questions the issuance of the ECC and the NTP, this involves factual and technical verification,
which are more properly within the expertise of the concerned government agencies.
Respondents anchor their argument on Section 6, Article II of DENR DAO 2003-30, which provides:
Section 6. Appeal
Any party aggrieved by the final decision on the ECC / CNC applications may, within 15 days from
receipt of such decision, file an appeal on the following grounds:
a. Grave abuse of discretion on the part of the deciding authority, or
b. Serious errors in the review findings.
The DENR may adopt alternative conflict/dispute resolution procedures as a means to settle grievances
between proponents and aggrieved parties to avert unnecessary legal action. Frivolous appeals shall not
be countenanced.
The proponent or any stakeholder may file an appeal to the following:
Deciding Authority Where to file the appeal
EMB Regional Office Director Office of the EMB Director
EMB Central Office Director Office of the DENR Secretary
DENR Secretary Office of the President

Respondents argue that since there is an administrative appeal provided for, then petitioner is duty
bound to observe the same and may not be granted recourse to the regular courts for its failure to do
so.
We do not agree with respondents appreciation of the applicability of the rule on exhaustion of
administrative remedies in this case. We are reminded of our ruling inPagara v. Court of
Appeals,
[136]
which summarized our earlier decisions on the procedural requirement of exhaustion of
administrative remedies, to wit:
The rule regarding exhaustion of administrative remedies is not a hard and fast rule. It is not
applicable (1) where the question in dispute is purely a legal one, or (2) where the controverted act is
patently illegal or was performed without jurisdiction or in excess of jurisdiction; or (3) where the
respondent is a department secretary, whose acts as an alter ego of the President bear the implied or
assumed approval of the latter, unless actually disapproved by him, or (4) where there are
circumstances indicating the urgency of judicial intervention, - Gonzales vs. Hechanova, L-21897,
October 22, 1963, 9 SCRA 230; Abaya vs. Villegas, L-25641, December 17, 1966, 18 SCRA;
Mitra vs. Subido, L-21691, September 15, 1967, 21 SCRA 127.
Said principle may also be disregarded when it does not provide a plain, speedy and adequate
remedy, (Cipriano vs. Marcelino, 43 SCRA 291), when there is no due process observed
(Villanos vs. Subido, 45 SCRA 299), or where the protestant has no other recourse (Sta. Maria vs. Lopez,
31 SCRA 637).
As petitioner correctly pointed out, the appeal provided for under Section 6 of DENR DAO 2003-30 is
only applicable, based on the first sentence thereof, if the person or entity charged with the duty to
exhaust the administrative remedy of appeal to the appropriate government agency has been a party or
has been made a party in the proceedings wherein the decision to be appealed was rendered. It has
been established by the facts that petitioner was never made a party to the proceedings before
respondent DENR-EMB RVI. Petitioner was only informed that the project had already been approved
after the ECC was already granted.
[138]
Not being a party to the said proceedings, it does not appear that
petitioner was officially furnished a copy of the decision, from which the 15-day period to appeal should
be reckoned, and which would warrant the application of Section 6, Article II of DENR DAO 2003-30.
Although petitioner was not a party to the proceedings where the decision to issue an ECC was
rendered, it stands to be aggrieved by the decision,
[139]
because it claims that the reclamation of land on
the Caticlan side would unavoidably adversely affect the Boracay side, where petitioners members own
establishments engaged in the tourism trade. As noted earlier, petitioner contends that the declared
objective of the reclamation project is to exploit Boracays tourism trade because the project is intended
to enhance support services thereto; however, this objective would not be achieved since the white-
sand beaches for which Boracay is famous might be negatively affected by the project. Petitioners
conclusion is that respondent Province, aided and abetted by respondents PRA and DENR-EMB RVI,
ignored the spirit and letter of our environmental laws, and should thus be compelled to perform their
duties under said laws.
The new Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, provides a relief for petitioner
under the writ of continuing mandamus, which is a special civil action that may be availed of to compel
the performance of an act specifically enjoined by law
[140]
and which provides for the issuance of a
TEPO as an auxiliary remedy prior to the issuance of the writ itself.
[141]
The Rationale of the said Rules
explains the writ in this wise:

Environmental law highlights the shift in the focal-point from the initiation of regulation by Congress to
the implementation of regulatory programs by the appropriate government agencies.
Thus, a government agencys inaction, if any, has serious implications on the future of environmental
law enforcement. Private individuals, to the extent that they seek to change the scope of the
regulatory process, will have to rely on such agencies to take the initial incentives, which may require
a judicial component. Accordingly, questions regarding the propriety of an agencys action or inaction
will need to be analyzed.
This point is emphasized in the availability of the remedy of the writ of mandamus, which allows for the
enforcement of the conduct of the tasks to which the writ pertains: the performance of a legal duty.
The writ of continuing mandamus permits the court to retain jurisdiction after judgment in order to
ensure the successful implementation of the reliefs mandated under the courts decision and, in order
to do this, the court may compel the submission of compliance reports from the respondent
government agencies as well as avail of other means to monitor compliance with its decision.
[143]

According to petitioner, respondent Province acted pursuant to a MOA with respondent PRA that was
conditioned upon, among others, a properly-secured ECC from respondent DENR-EMB RVI. For this
reason, petitioner seeks to compel respondent Province to comply with certain environmental laws,
rules, and procedures that it claims were either circumvented or ignored. Hence, we find that the
petition was appropriately filed with this Court under Rule 8, Section 1, A.M. No. 09-6-8-SC, which reads:
SECTION 1. Petition for continuing mandamus.When any agency or instrumentality of the
government or officer thereof unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another
from the use or enjoyment of such right and there is no other plain, speedy and adequate remedy in the
ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court,
alleging the facts with certainty, attaching thereto supporting evidence, specifying that the petition
concerns an environmental law, rule or regulation, and praying that judgment be rendered commanding
the respondent to do an act or series of acts until the judgment is fully satisfied, and to pay damages
sustained by the petitioner by reason of the malicious neglect to perform the duties of the respondent,
under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum
shopping.

SECTION 2. Where to file the petition.The petition shall be filed with the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred or with the Court of
Appeals or the Supreme Court.
Petitioner had three options where to file this case under the rule: the Regional Trial Court exercising
jurisdiction over the territory where the actionable neglect or omission occurred, the Court of Appeals,
or this Court.
Petitioner had no other plain, speedy, or adequate remedy in the ordinary course of law to determine
the questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus it was justified in coming to this Court.
Having resolved the procedural issue, we now move to the substantive issues.
On the issues of whether, based on the scope and classification of the project, a full EIA is required by
laws and regulations, and whether respondent Province complied with all the requirements under the
pertinent laws and regulations
Petitioners arguments on this issue hinges upon its claim that the reclamation project is misclassified as
a single project when in fact it is co-located. Petitioner also questions the classification made by
respondent Province that the reclamation project is merely an expansion of the existing jetty port, when
the project descriptions embodied in the different documents filed by respondent Province describe
commercial establishments to be built, among others, to raise revenues for the LGU; thus, it should have
been classified as a new project. Petitioner likewise cries foul to the manner by which respondent
Province allegedly circumvented the documentary requirements of the DENR-EMB RVI by the act of
connecting the reclamation project with its previous project in 1999 and claiming that the new project is
a mere expansion of the previous one.
As previously discussed, respondent Province filed a Manifestation and Motion stating that the ECC
issued by respondent DENR-EMB RVI covered an area of 2,691 square meters in Caticlan, and its
application for reclamation of 40 hectares with respondent PRA was conditioned on its submission of
specific documents within 120 days. Respondent Province claims that its failure to comply with said
condition indicated its waiver to pursue the succeeding phases of the reclamation project and that the
subject matter of this case had thus been limited to 2.64 hectares. Respondent PRA, for its part,
declared through its General Manager that the Aklan Beach Zone Restoration and Protection Marine
Development Project will now be confined to the reclamation and development of the 2.64 hectares,
more or less.
The Court notes such manifestation of respondent Province. Assuming, however, that the area involved
in the subject reclamation project has been limited to 2.64 hectares, this case has not become moot and
academic, as alleged by respondents, because the Court still has to check whether respondents had
complied with all applicable environmental laws, rules, and regulations pertaining to the actual
reclamation project.
We recognize at this point that the DENR is the government agency vested with delegated powers to
review and evaluate all EIA reports, and to grant or deny ECCs to project proponents.
[145]
It is the DENR
that has the duty to implement the EIS system. It appears, however, that respondent DENR-EMB RVIs
evaluation of this reclamation project was problematic, based on the valid questions raised by
petitioner.
Being the administrator of the EIS System, respondent DENR-EMB RVIs submissions bear great weight in
this case. However, the following are the issues that put in question the wisdom of respondent DENR-
EMB RVI in issuing the ECC:
1. Its approval of respondent Provinces classification of the project as a mere expansion of the
existing jetty port in Caticlan, instead of classifying it as a new project;
2. Its classification of the reclamation project as a single instead of a co-located project;
3. The lack of prior public consultations and approval of local government agencies; and
4. The lack of comprehensive studies regarding the impact of the reclamation project to the
environment.
The above issues as raised put in question the sufficiency of the evaluation of the project by respondent
DENR-EMB RVI.
Nature of the project
The first question must be answered by respondent DENR-EMB RVI as the agency with the expertise and
authority to state whether this is a new project, subject to the more rigorous environmental impact
study requested by petitioner, or it is a mere expansion of the existing jetty port facility
The second issue refers to the classification of the project by respondent Province, approved by
respondent DENR-EMB RVI, as single instead of co-located. Under the Revised Procedural Manual,
the Summary List of Additional Non-Environmentally-Critical Project (NECP) Types in ECAs Classified
under Group II (Table I-2)lists buildings, storage facilities and other structures as a separate item
from transport terminal facilities. This creates the question of whether this project should be
considered as consisting of more than one type of activity, and should more properly be classified as
co-located, under the following definition from the same Manual, which reads:
f) Group IV (Co-located Projects in either ECA or NECA): A co-located project is a group of single
projects, under one or more proponents/locators, which are located in a contiguous area and
managed by one administrator, who is also the ECC applicant. The co-located project may be an
economic zone or industrial park, or a mix of projects within a catchment, watershed or river basin, or
any other geographical, political or economic unit of area. Since the location or threshold of specific
projects within the contiguous area will yet be derived from the EIA process based on the carrying
capacity of the project environment, the nature of the project is called programmatic.
Respondent DENR-EMB RVI should conduct a thorough and detailed evaluation of the project to address
the question of whether this could be deemed as a group of single projects (transport terminal facility,
building, etc.) in a contiguous area managed by respondent Province, or as a single project.
The third item in the above enumeration will be discussed as a separate issue.
The answer to the fourth question depends on the final classification of the project under items 1 and 3
above because the type of EIA study required under the Revised Procedural Manual depends on such
classification.
The very definition of an EIA points to what was most likely neglected by respondent Province as project
proponent, and what was in turn overlooked by respondent DENR-EMB RVI, for it is defined as follows:
An *EIA+ is a process that involves predicting and evaluating the likely impacts of a project (including
cumulative impacts) on the environment during construction, commissioning, operation and
abandonment. It also includes designing appropriate preventive, mitigating and enhancement measures
addressing these consequences to protect the environment and the communitys welfare.

Thus, the EIA process must have been able to predict the likely impact of the reclamation project to the
environment and to prevent any harm that may otherwise be caused.
The project now before us involves reclamation of land that is more than five times the size of the
original reclaimed land. Furthermore, the area prior to construction merely contained a jetty port,
whereas the proposed expansion, as described in the EPRMP submitted by respondent Province to
respondent DENR-EMB RVI involves so much more, and we quote:
The expansion project will be constructed at the north side of the existing jetty port and terminal that
will have a total area of 2.64 hectares, more or less, after reclamation. The Phase 1 of the project
construction costing around P260 million includes the following:
1. Reclamation - 3,000 sq m (expansion of jetty port)
2. Reclamation - 13,500 sq m (buildable area)
3. Terminal annex building - 250 sq m
4. 2-storey commercial building 2,500 sq m (1,750 sq m of leasable space)
5. Health and wellness center
6. Access road - 12 m (wide)
7. Parking, perimeter fences, lighting and water treatment sewerage system
8. Rehabilitation of existing jetty port and terminal
The succeeding phases of the project will consist of [further] reclamation, completion of the commercial
center building, bay walk commercial strip, staff building, ferry terminal, a cable car system and wharf
marina. This will entail an additional estimated cost of P785 million bringing the total investment
requirement to about P1.0 billion.
As may be gleaned from the breakdown of the 2.64 hectares as described by respondent Province
above, a significant portion of the reclaimed area would be devoted to the construction of a commercial
building, and the area to be utilized for the expansion of the jetty port consists of a mere 3,000 square
meters (sq. m). To be true to its definition, the EIA report submitted by respondent Province should at
the very least predict the impact that the construction of the new buildings on the reclaimed land would
have on the surrounding environment. These new constructions and their environmental effects were
not covered by the old studies that respondent Province previously submitted for the construction of
the original jetty port in 1999, and which it re-submitted in its application for ECC in this alleged
expansion, instead of conducting updated and more comprehensive studies.
Any impact on the Boracay side cannot be totally ignored, as Caticlan and Boracay are separated only by
a narrow strait. This becomes more imperative because of the significant contributions of Boracays
white-sand beach to the countrys tourism trade, which requires respondent Province to proceed with
utmost caution in implementing projects within its vicinity.
We had occasion to emphasize the duty of local government units to ensure the quality of the
environment under Presidential Decree No. 1586 in Republic of the Philippines v. The City of
Davao, wherein we held:
Section 15 of Republic Act 7160, otherwise known as the Local Government Code, defines a local
government unit as a body politic and corporate endowed with powers to be exercised by it in
conformity with law. As such, it performs dual functions, governmental and proprietary. Governmental
functions are those that concern the health, safety and the advancement of the public good or welfare
as affecting the public generally. Proprietary functions are those that seek to obtain special corporate
benefits or earn pecuniary profit and intended for private advantage and benefit. When exercising
governmental powers and performing governmental duties, an LGU is an agency of the national
government. When engaged in corporate activities, it acts as an agent of the community in the
administration of local affairs.
Found in Section 16 of the Local Government Code is the duty of the LGUs to promote the peoples
right to a balanced ecology. Pursuant to this, an LGU, like the City of Davao, can not claim exemption
from the coverage of PD 1586. As a body politic endowed with governmental functions, an LGU has the
duty to ensure the quality of the environment, which is the very same objective of PD 1586.
Section 4 of PD 1586 clearly states that no person, partnership or corporation shall undertake or
operate any such declared environmentally critical project or area without first securing an
Environmental Compliance Certificate issued by the President or his duly authorized representative.
The Civil Code defines a person as either natural or juridical. The state and its political subdivisions, i.e.,
the local government units are juridical persons. Undoubtedly therefore, local government units are
not excluded from the coverage of PD 1586.
Lastly, very clear in Section 1 of PD 1586 that said law intends to implement the policy of the state to
achieve a balance between socio-economic development and environmental protection, which are the
twin goals of sustainable development. The above-quoted first paragraph of the Whereas clause
stresses that this can only be possible if we adopt a comprehensive
and integrated environmental protection program where all the sectors of the community are
involved, i.e., the government and the private sectors. The local government units, as part of the
machinery of the government, cannot therefore be deemed as outside the scope of the EIS system.
The Court chooses to remand these matters to respondent DENR-EMB RVI for it to make a proper
study, and if it should find necessary, to require respondent Province to address these environmental
issues raised by petitioner and submit the correct EIA report as required by the projects
specifications. The Court requires respondent DENR-EMB RVI to complete its study and submit a report
within a non-extendible period of three months. Respondent DENR-EMB RVI should establish to the
Court in said report why the ECC it issued for the subject project should not be canceled.
Lack of prior public consultation
The Local Government Code establishes the duties of national government agencies in the maintenance
of ecological balance, and requires them to secure prior public consultation and
approval of local government units for the projects described therein.

In the case before us, the national agency involved is respondent PRA. Even if the project proponent is
the local government of Aklan, it is respondent PRA which authorized the reclamation, being the
exclusive agency of the government to undertake reclamation nationwide. Hence, it was necessary for
respondent Province to go through respondent PRA and to execute a MOA, wherein respondent PRAs
authority to reclaim was delegated to respondent Province. Respondent DENR-EMB RVI, regional office
of the DENR, is also a national government institution which is tasked with the issuance of the ECC that
is a prerequisite to projects covered by environmental laws such as the one at bar.
This project can be classified as a national project that affects the environmental and ecological balance
of local communities, and is covered by the requirements found in the Local Government Code
provisions that are quoted below:
Section 26. Duty of National Government Agencies in the Maintenance of Ecological Balance. - It shall
be the duty of every national agency or government-owned or controlled corporation authorizing or
involved in the planning and implementation of any project or program that may cause pollution,
climatic change, depletion of non-renewable resources, loss of crop land, rangeland, or forest cover, and
extinction of animal or plant species, to consult with the local government units, nongovernmental
organizations, and other sectors concerned and explain the goals and objectives of the project or
program, its impact upon the people and the community in terms of environmental or ecological
balance, and the measures that will be undertaken to prevent or minimize the adverse effects thereof.
Section 27. Prior Consultations Required. - No project or program shall be implemented by government
authorities unless the consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is obtained: Provided, That occupants in areas where such
projects are to be implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.
In Lina, Jr. v. Pao, we held that Section 27 of the Local Government Code applies only to national
programs and/or projects which are to be implemented in a particular local community and that it
should be read in conjunction with Section 26. We held further in this manner:

Thus, the projects and programs mentioned in Section 27 should be interpreted to mean projects and
programs whose effects are among those enumerated in Section 26 and 27, to wit, those that: (1) may
cause pollution; (2) may bring about climatic change; (3) may cause the depletion of non-renewable
resources; (4) may result in loss of crop land, range-land, or forest cover; (5) may eradicate certain
animal or plant species from the face of the planet; and (6) other projects or programs that may call for
the eviction of a particular group of people residing in the locality where these will be implemented.
Obviously, none of these effects will be produced by the introduction of lotto in the province of Laguna.
During the oral arguments held on September 13, 2011, it was established that this project as described
above falls under Section 26 because the commercial establishments to be built on phase 1, as
described in the EPRMP quoted above, could cause pollution as it could generate garbage, sewage, and
possible toxic fuel discharge.
Our ruling in Province of Rizal v. Executive Secretary is instructive:
We reiterated this doctrine in the recent case of Bangus Fry Fisherfolk v. Lanzanas, where we held that
there was no statutory requirement for the sangguniang bayan of Puerto Galera to approve the
construction of a mooring facility, as Sections 26 and 27 are inapplicable to projects which are not
environmentally critical.

Moreover, Section 447, which enumerates the powers, duties and functions of the municipality, grants
the sangguniang bayan the power to, among other things, enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its inhabitants pursuant to Section 16
of th(e) Code. These include:
(1) Approving ordinances and passing resolutions to protect the environment and impose
appropriate penalties for acts which endanger the environment, such as dynamite fishing and other
forms of destructive fishing, illegal logging and smuggling of logs, smuggling of natural resources
products and of endangered species of flora and fauna, slash and burn farming, and such other activities
which result in pollution, acceleration of eutrophication of rivers and lakes, or of ecological imbalance;
[Section 447 (1)(vi)]
(2) Prescribing reasonable limits and restraints on the use of property within the jurisdiction of the
municipality, adopting a comprehensive land use plan for the municipality, reclassifying land within the
jurisdiction of the city, subject to the pertinent provisions of this Code, enacting integrated zoning
ordinances in consonance with the approved comprehensive land use plan, subject to existing laws,
rules and regulations; establishing fire limits or zones, particularly in populous centers; and regulating
the construction, repair or modification of buildings within said fire limits or zones in accordance with
the provisions of this Code; [Section 447 (2)(vi-ix)]

(3) Approving ordinances which shall ensure the efficient and effective delivery of the basic services
and facilities as provided for under Section 17 of this Code, and in addition to said services and facilities,
providing for the establishment, maintenance, protection, and conservation of communal forests and
watersheds, tree parks, greenbelts, mangroves, and other similar forest development projects and,
subject to existing laws, establishing and providing for the maintenance, repair and operation of an
efficient waterworks system to supply water for the inhabitants and purifying the source of the water
supply; regulating the construction, maintenance, repair and use of hydrants, pumps, cisterns and
reservoirs; protecting the purity and quantity of the water supply of the municipality and, for this
purpose, extending the coverage of appropriate ordinances over all territory within the drainage area of
said water supply and within one hundred (100) meters of the reservoir, conduit, canal, aqueduct,
pumping station, or watershed used in connection with the water service; and regulating the
consumption, use or wastage of water. *Section 447 (5)(i) & (vii)+

Under the Local Government Code, therefore, two requisites must be met before a national project
that affects the environmental and ecological balance of local communities can be implemented:
prior consultation with the affected local communities, and prior approval of the project by the
appropriate sanggunian. Absent either of these mandatory requirements, the projects
implementation is illegal.
Based on the above, therefore, prior consultations and prior approval are required by law to have
been conducted and secured by the respondent Province. Accordingly, the information dissemination
conducted months after the ECC had already been issued was insufficient to comply with this
requirement under the Local Government Code. Had they been conducted properly, the prior public
consultation should have considered the ecological or environmental concerns of the stakeholders and
studied measures alternative to the project, to avoid or minimize adverse environmental impact or
damage. In fact, respondent Province once tried to obtain the favorable endorsement of
the Sangguniang Bayan of Malay, but this was denied by the latter.
Moreover, DENR DAO 2003-30 provides:
5.3 Public Hearing / Consultation Requirements
For projects under Category A-1, the conduct of public hearing as part of the EIS review is
mandatory unless otherwise determined by EMB. For all other undertakings, a public hearing is not
mandatory unless specifically required by EMB.

Proponents should initiate public consultations early in order to ensure that environmentally
relevant concerns of stakeholders are taken into consideration in the EIA study and the formulation of
the management plan. All public consultations and public hearings conducted during the EIA process
are to be documented. The public hearing/consultation Process reportshall be validated by the
EMB/EMB RD and shall constitute part of the records of the EIA process. (Emphasis supplied.)
In essence, the above-quoted rule shows that in cases requiring public consultations, the same should
be initiated early so that concerns of stakeholders could be taken into consideration in the EIA study. In
this case, respondent Province had already filed its ECC application before it met with the local
government units of Malay and Caticlan.
The claim of respondent DENR-EMB RVI is that no permits and/or clearances from National
Government Agencies (NGAs) and LGUs are required pursuant to the DENR Memorandum Circular No.
2007-08. However, we still find that the LGC requirements of consultation and approval apply in this
case. This is because a Memorandum Circular cannot prevail over the Local Government Code, which is
a statute and which enjoys greater weight under our hierarchy of laws.
Subsequent to the information campaign of respondent Province, the Municipality of Malay and the Liga
ng mga Barangay-Malay Chapter still opposed the project. Thus, when respondent Province
commenced the implementation project, it violated Section 27 of the LGC, which clearly enunciates that
*no+ project or program shall be implemented by government authorities unless the consultations
mentioned in Sections 2(c) and 26 hereof are complied with, and prior approval of
the sanggunian concerned is obtained.
The lack of prior public consultation and approval is not corrected by the subsequent endorsement of
the reclamation project by the Sangguniang Barangay of Caticlan on February 13, 2012, and
the Sangguniang Bayan of the Municipality of Malay on February 28, 2012, which were both
undoubtedly achieved at the urging and insistence of respondent Province. As we have established
above, the respective resolutions issued by the LGUs concerned did not render this petition moot and
academic.
It is clear that both petitioner and respondent Province are interested in the promotion of tourism in
Boracay and the protection of the environment, lest they kill the proverbial hen that lays the golden
egg. At the beginning of this decision, we mentioned that there are common goals of national
significance that are very apparent from both the petitioners and the respondents respective pleadings
and memoranda.
The parties are evidently in accord in seeking to uphold the mandate found in Article II, Declaration of
Principles and State Policies, of the 1987 Constitution, which we quote below:
SECTION 16. The State shall protect and advance the right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of nature.
SECTION 20. The State recognizes the indispensable role of the private sector, encourages private
enterprise, and provides incentives to needed investments.
The protection of the environment in accordance with the aforesaid constitutional mandate is the
aim, among others, of Presidential Decree No. 1586, Establishing an Environmental Impact Statement
System, Including Other Environmental Management Related Measures and For Other Purposes, which
declared in its first Section that it is the policy of the State to attain and maintain a rational and
orderly balance between socio-economic growth and environmental protection.
The parties undoubtedly too agree as to the importance of promoting tourism, pursuant to Section 2
of Republic Act No. 9593, or The Tourism Act of 2009, which reads:
SECTION 2. Declaration of Policy. The State declares tourism as an indispensable element of the
national economy and an industry of national interest and importance, which must be harnessed as an
engine of socioeconomic growth and cultural affirmation to generate investment, foreign exchange and
employment, and to continue to mold an enhanced sense of national pride for all Filipinos. (Emphasis
ours.)
The primordial role of local government units under the Constitution and the Local Government
Code of 1991 in the subject matter of this case is also unquestionable. The Local Government Code of
1991 (Republic Act No. 7160) pertinently provides:
Section 2. Declaration of Policy. - (a) It is hereby declared the policy of the State that the territorial and
political subdivisions of the State shall enjoy genuine and meaningful local autonomy to enable them
to attain their fullest development as self-reliant communities and make them more effective
partners in the attainment of national goals. Toward this end, the State shall provide for a more
responsive and accountable local government structure instituted through a system of decentralization
whereby local government units shall be given more powers, authority, responsibilities, and
resources. The process of decentralization shall proceed from the national government to the local
government units.
[156]
(Emphases ours.)


As shown by the above provisions of our laws and rules, the speedy and smooth resolution of these
issues would benefit all the parties. Thus, respondent Provinces cooperation with respondent DENR-
EMB RVI in the Court-mandated review of the proper classification and environmental impact of the
reclamation project is of utmost importance.

WHEREFORE, premises considered, the petition is hereby PARTIALLY GRANTED. The TEPO issued by
this Court is hereby converted into a writ of continuing mandamus specifically as follows:

1. Respondent Department of Environment and Natural Resources-Environmental Management
Bureau Regional Office VI shall revisit and review the following matters:

a. its classification of the reclamation project as a single instead of a co-located project;
b. its approval of respondent Provinces classification of the project as a mere expansion of the
existing jetty port in Caticlan, instead of classifying it as a new project; and
c. the impact of the reclamation project to the environment based on new, updated, and
comprehensive studies, which should forthwith be ordered by respondent DENR-EMB RVI.

2. Respondent Province of Aklan shall perform the following:

a. fully cooperate with respondent DENR-EMB RVI in its review of the reclamation project proposal
and submit to the latter the appropriate report and study; and
b. secure approvals from local government units and hold proper consultations with non-
governmental organizations and other stakeholders and sectors concerned as required by Section 27
in relation to Section 26 of the Local Government Code.

3. Respondent Philippine Reclamation Authority shall closely monitor the submission by respondent
Province of the requirements to be issued by respondent DENR-EMB RVI in connection to the
environmental concerns raised by petitioner, and shall coordinate with respondent Province in
modifying the MOA, if necessary, based on the findings of respondent DENR-EMB RVI.

4. The petitioner Boracay Foundation, Inc. and the respondents The Province of Aklan, represented
by Governor Carlito S. Marquez, The Philippine Reclamation Authority, and The DENR-EMB (Region VI)
are mandated to submit their respective reports to this Court regarding their compliance with the
requirements set forth in this Decision no later than three (3) months from the date of promulgation
of this Decision.

5. In the meantime, the respondents, their concerned contractor/s, and/or their agents,
representatives or persons acting in their place or stead, shall immediately cease and desist from
continuing the implementation of the project covered by ECC-R6-1003-096-7100 until further orders
from this Court. For this purpose, the respondents shall report within five (5) days to this Court the
status of the project as of their receipt of this Decision, copy furnished the petitioner.

This Decision is immediately executory.

SO ORDERED.