G.R. No.

93654 May 6, 1992 Bugarin, Jose Manuel, Crisaldo Paguirigan, Alejandro Castron, Ruben
FRANCISCO U. DACANAY, petitioner, vs. Araneta, Juanita and Rafael Malibaran, and others, the respondents city
MAYOR MACARIO ASISTIO, JR., CITY ENGR. LUCIANO SARNE, JR. mayor and city engineer, issued them licenses to conduct vending
of Kalookan City, Metro Manila, MILA PASTRANA AND/OR activities on said street.
RODOLFO TEOFE, STALLHOLDERS AND REPRESENTING CO-
STALLHOLDERS, respondents. In 1987, Antonio Martinez, as OIC city mayor of Caloocan City, caused
David D. Advincula, Jr. for petitioner. the demolition of the market stalls on Heroes del '96, V. Gozon and
Juan P. Banaga for private respondents. Gonzales streets. To stop Mayor Martinez' efforts to clear the city streets,
Rodolfo Teope, Mila Pastrana and other stallowners filed an action for
GRIÑO-AQUINO, J.: prohibition against the City of Caloocan, the OIC City Mayor and the City
Engineer and/or their deputies (Civil Case No. C-12921) in the Regional
May public streets or thoroughfares be leased or licensed to market Trial Court of Caloocan City, Branch 122, praying the court to issue a writ
stallholders by virtue of a city ordinance or resolution of the Metro Manila of preliminary injunction ordering these city officials to discontinue the
Commission? This issue is posed by the petitioner, an aggrieved demolition of their stalls during the pendency of the action.
Caloocan City resident who filed a special civil action of mandamus
against the incumbent city mayor and city engineer, to compel these city The court issued the writ prayed for. However, on December 20, 1987, it
officials to remove the market stalls from certain city streets which the dismissed the petition and lifted the writ of preliminary injunction which it
aforementioned city officials have designated as flea markets, and the had earlier issued. The trial court observed that:
private respondents (stallholders) to vacate the streets.
A perusal of Ordinance 2, series of 1979 of the Metropolitan Manila
On January 5, 1979, MMC Ordinance No. 79-02 was enacted by the Commission will show on the title itself that it is an ordinance ––
Metropolitan Manila Commission, designating certain city and municipal
streets, roads and open spaces as sites for flea markets. Pursuant, Authorizing and regulating the use of certain city and/or municipal streets,
thereto, the Caloocan City mayor opened up seven (7) flea markets in roads and open spaces within Metropolitan Manila as sites for flea market
that city. One of those streets was the "Heroes del '96" where the and/or vending areas, under certain terms and conditions, subject to the
petitioner lives. Upon application of vendors Rodolfo Teope, Mila approval of the Metropolitan Manila Commission, and for other purposes
Pastrana, Carmen Barbosa, Merle Castillo, Bienvenido Menes, Nancy

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which is further amplified in Section 2 of the said ordinance, quoted (m) That the permittee shall remove the equipment, facilities and other
hereunder: appurtenances used by him in the conduct of his business after the close
or termination of business hours. (Emphasis ours; pp. 15-16, Rollo.)
Sec. 2. The streets, roads and open spaces to be used as sites for flea
markets (tiangge) or vending areas; the design, measurement or The trial court found that Heroes del '96, Gozon and Gonzales streets are
specification of the structures, equipment and apparatuses to be used or of public dominion, hence, outside the commerce of man:
put up; the allowable distances; the days and time allowed for the
conduct of the businesses and/or activities herein authorized; the rates or The Heroes del '96 street, V. Gozon street and Gonzales street, being of
fees or charges to be imposed, levied and collected; the kinds of public dominion must, therefore, be outside of the commerce of man.
merchandise, goods and commodities sold and services rendered; and Considering the nature of the subject premises, the following
other matters and activities related to the establishment, maintenance jurisprudence co/principles are applicable on the matter:
and management and operation of flea markets and vending areas, shall
be determined and prescribed by the mayors of the cities and 1) They cannot be alienated or leased or otherwise be the subject matter
municipalities in the Metropolitan Manila where the same are located, of contracts. (Municipality of Cavite vs. Rojas, 30 Phil. 602);
subject to the approval of the Metropolitan Manila Commission and
consistent with the guidelines hereby prescribed. 2) They cannot be acquired by prescription against the state (Insular
Government vs. Aldecoa, 19 Phil. 505). Even municipalities can not
Further, it is so provided in the guidelines under the said Ordinance No. 2 acquire them for use as communal lands against the state (City of Manila
of the MMC that — vs. Insular Government, 10 Phil. 327);

Sec. 6. In the establishment, operation, maintenance and management of 3) They are not subject to attachment and execution (Tan Toco vs.
flea markets and vending areas, the following guidelines, among others, Municipal Council of Iloilo, 49 Phil. 52);
shall be observed:
4) They cannot be burdened by any voluntary easement (2-II Colin &
xxx xxx xxx Capitant 520) (Tolentino, Civil Code of the Phils., Vol. II, 1983 Ed. pp. 29-
30).

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In the aforecited case of Municipality of Cavite vs. Rojas, it was held that private property (Zansibarian Residents Association vs. Mun. of Makati,
properties for public use may not be leased to private individuals. Such a 135 SCRA 235). The City Engineer is also among those required to
lease is null and void for the reason that a municipal council cannot comply with said Letter of Instruction.
withdraw part of the plaza from public use. If possession has already
been given, the lessee must restore possession by vacating it and the The occupation and use of private individuals of sidewalks and other
municipality must thereupon restore to him any sums it may have public places devoted for public use constitute both public and private
collected as rent. nuisances and nuisance per se, and this applies to even case involving
the use or lease of public places under permits and licenses issued by
In the case of City of Manila vs. Gerardo Garcia, 19 SCRA 413, the competent authority, upon the theory that such holders could not take
Supreme Court held: advantage of their unlawful permits and license and claim that the land in
question is a part of a public street or a public place devoted to public
The property being a public one, the Manila Mayors did not have the use, hence, beyond the commerce of man. (Padilla, Civil Code
authority to give permits, written or oral, to the squatters, and that the Annotated, Vol. II, p. 59, 6th Ed., citing Umali vs. Aquino, IC. A. Rep.
permits granted are therefore considered null and void. 339.)

This doctrine was reiterated in the case of Baguio Citizens Action Inc. vs. From the aforequoted jurisprudence/principles, the Court opines that
The City Council, 121 SCRA 368, where it was held that: defendants have the right to demolish the subject stalls of the plaintiffs,
more so when Section 185, par. 4 of Batas Pambansa Blg. 337,
An ordinance legalizing the occupancy by squatters of public land is null otherwise known as the Local Government Code provides that the City
and void. Engineer shall:

The authority of respondent Municipality of Makati to demolish the (4) . . .

shanties of the petitioner's members is mandated by
P.D. 772, and Sec. 1 of Letter of Instruction No. 19 orders certain public (c) Prevent the encroachment of private buildings and fences on the
officials, one of whom is the Municipal Mayor to remove all illegal streets and public places;
constructions including buildings on and along esteros and river banks,
those along railroad tracks and those built without permits on public or xxx xxx xxx

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 Mayor Asistio, Jr., calling his attention to the illegally-constructed stalls on
(j) Inspect and supervise the construction, repair, removal and safety of Heroes del '96 Street and asked for their demolition.
private buildings;
Dacanay followed up that letter with another one dated April 7, 1988
xxx xxx xxx addressed to the mayor and the city engineer, Luciano Sarne, Jr. (who
replaced Engineer Arturo Samonte), inviting their attention to the
(k) With the previous approval of the City Mayor in each case, order the Regional Trial Court's decision in Civil Case No. 12921. There was still no
removal of materials employed in the construction or repair of any response.
building or structures made in violation of law or ordinance, and cause
buildings and structures dangerous to the public to made secure or torn Dacanay sought President Corazon C. Aquino's intervention by writing
down; her a letter on the matter. His letter was referred to the city mayor for
appropriate action. The acting Caloocan City secretary, Asuncion
xxx xxx xxx Manalo, in a letter dated August 1, 1988, informed the Presidential Staff
Director that the city officials were still studying the issue of whether or
Further, the Charter of the City of Caloocan, Republic Act No. 5502, Art. not to proceed with the demolition of the market stalls.
VII, Sec. 27, par. g, 1 and m, grants the City Engineer similar powers.
(Emphasis supplied; pp. 17-20, Rollo.) Dacanay filed a complaint against Mayor Asistio and Engineer Sarne
(OMB-0-89-0146) in the Office of the OMBUDSMAN. In their letter-
However, shortly after the decision came out, the city administration in comment dated April 3, 1989, said city officials explained that in view of
Caloocan City changed hands. City Mayor Macario Asistio, Jr., as the huge number of stallholders involved, not to mention their
successor of Mayor Martinez, did not pursue the latter's policy of clearing dependents, it would be harsh and inhuman to eject them from the area
and cleaning up the city streets. in question, for their relocation would not be an easy task.

Invoking the trial court's decision in Civil Case No. C-12921, Francisco U. In reply, Dacanay maintained that respondents have been derelict in the
Dacanay, a concerned citizen, taxpayer and registered voter of Barangay performance of their duties and through manifest partiality constituting a
74, Zone 7, District II of Caloocan City, who resides on Heroes del '96 violation of Section 3(e) of R.A. 3019, have caused undue injury to the
Street, one of the affected streets, wrote a letter dated March 7, 1988 to Government and given unwarranted benefits to the stallholders.

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 Metropolitan Manila Commission, the latter passed Ordinance No. 79-2,
After conducting a preliminary investigation, the OMBUDSMAN rendered authorizing the use of certain streets and open spaces as sites for flea
a final evaluation and report on August 28, 1989, finding that the markets and/or vending areas; that pursuant thereto, Acting MMC Mayor
respondents' inaction is purely motivated by their perceived moral and Virgilio P. Robles issued Executive Order No. 135 dated January 10,
social responsibility toward their constituents, but "the fact remains that 1979, ordering the establishment and operation of flea markets in
there is an omission of an act which ought to be performed, in clear specified areas and created the Caloocan City Flea Market Authority as a
violation of Sections 3(e) and (f) of Republic Act 3019." (pp. 83-84, Rollo.) regulatory body; and that among the sites chosen and approved by the
The OMBUDSMAN recommended the filing of the corresponding Metro Manila Commission, Heroes del '96 Street has considered "most
information in court. viable and progressive, lessening unemployment in the city and servicing
the residents with affordable basic necessities."
As the stallholders continued to occupy Heroes del '96 Street, through the
tolerance of the public respondents, and in clear violation of the decision The petition for mandamus is meritorious.
it Civil Case No. C-12921, Dacanay filed the present petition for
mandamus on June 19, 1990, praying that the public respondents be There is no doubt that the disputed areas from which the private
ordered to enforce the final decision in Civil Case No. C-12921 which respondents' market stalls are sought to be evicted are public streets, as
upheld the city mayor's authority to order the demolition of market stalls found by the trial court in Civil Case No. C-12921. A public street is
on V. Gozon, Gonzales and Heroes del '96 Streets and to enforce P.D. property for public use hence outside the commerce of man (Arts. 420,
No. 772 and other pertinent laws. 424, Civil Code). Being outside the commerce of man, it may not be the
subject of lease or other contract (Villanueva et al. vs. Castañeda and
On August 16, 1990, the public respondents, through the City Legal Macalino, 15 SCRA 142, citing the Municipality of Cavite vs. Rojas, 30
Officer, filed their Comment' on the petition. The Office of the Solicitor SCRA 602; Espiritu vs. Municipal Council of Pozorrubio, 102 Phil. 869;
General asked to be excused from filing a separate Comment in behalf of and Muyot vs. De la Fuente, 48 O.G. 4860).
the public respondents. The City Legal Officer alleged that the vending
area was transferred to Heroes del '96 Street to decongest Malonzo As the stallholders pay fees to the City Government for the right to
Street, which is comparatively a busier thoroughfare; that the transfer occupy portions of the public street, the City Government, contrary to law,
was made by virtue of Barangay Resolution No. 30 s'78 dated January has been leasing portions of the streets to them. Such leases or licenses
15, 1978; that while the resolution was awaiting approval by the are null and void for being contrary to law. The right of the public to use

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the city streets may not be bargained away through contract. The demolished, the market stalls occupying said city streets with utmost
interests of a few should not prevail over the good of the greater number dispatch within thirty (30)days from notice of this decision. This decision
in the community whose health, peace, safety, good order and general is immediately executory.
welfare, the respondent city officials are under legal obligation to protect.
SO ORDERED.
The Executive Order issued by Acting Mayor Robles authorizing the use
of Heroes del '96 Street as a vending area for stallholders who were
granted licenses by the city government contravenes the general law that
reserves city streets and roads for public use. Mayor Robles' Executive
Order may not infringe upon the vested right of the public to use city
streets for the purpose they were intended to serve: i.e., as arteries of
travel for vehicles and pedestrians. As early as 1989, the public
respondents bad started to look for feasible alternative sites for flea
markets. They have had more than ample time to relocate the street
vendors.

WHEREFORE, it having been established that the petitioner and the

general public have a legal right to the relief demanded and that the
public respondents have the corresponding duty, arising from public
office, to clear the city streets and restore them to their specific public
purpose (Enriquez vs. Bidin, 47 SCRA 183; City of Manila vs. Garcia et
al., 19 SCRA, 413 citing Unson vs. Lacson, 100 Phil. 695), the
respondents City Mayor and City Engineer of Caloocan City or their
successors in office are hereby ordered to immediately enforce and
implement the decision in Civil Case No. C-1292 declaring that Heroes
del '96, V. Gozon, and Gonzales Streets are public streets for public use,
and they are ordered to remove or demolish, or cause to be removed or

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