G.R. No.

L-119694 May 22, 1995

PHILIPPINE PRESS INSTITUTE, INC., for and in behalf of 139
members, represented by its President, Amado P. Macasaet
and its Executive Director Ermin F. Garcia, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

case maybe, sufficiently in advance and in

writing of the date of issue and the
newspaper or publication allocated to him,
and the time within which he must submit
the written material for publication in the
"Comelec Space".
xxx xxx xxx

RESOLUTION

FELICIANO, J.:
The Philippine Press Institute, Inc. ("PPI") is before this Court
assailing the constitutional validity of Resolution No. 2772
issued by respondent Commission on Elections ("Comelec")
and its corresponding Comelec directive dated 22 March
1995, through a Petition for Certiorari and Prohibition.
Petitioner PPI is a non-stock, non-profit organization of
newspaper and magazine publishers.
On 2 March 1995, Comelec promulgated Resolution No. 2772,
which reads in part:
xxx xxx xxx
Sec. 2. Comelec Space. The Commission
shall procure free print space of not less
than one half (1/2) page in at least one
newspaper of general circulation in every
province or city for use as "Comelec Space"
from March 6, 1995 in the case of
candidates for senator and from March 21,
1995 until May 12, 1995. In the absence of
said newspaper, "Comelec Space" shall be
obtained from any magazine or periodical of
said province or city.
Sec. 3. Uses of Comelec Space. "Comelec
Space" shall be allocated by the
Commission, free of charge, among all
candidates within the area in which the
newspaper, magazine or periodical is
circulated to enable the candidates to make
known their qualifications, their stand on
public issues and their platforms and
programs of government.
"Comelec Space" shall also be used by the
Commission for dissemination of vital
election information.
Sec. 4. Allocation of Comelec Space. (a)
"Comelec Space" shall also be available to
all candidates during the periods stated in
Section 2 hereof. Its allocation shall be
equal and impartial among all candidates
for the same office. All candidates
concerned shall be furnished a copy of the
allocation of "Comelec Space" for their
information, guidance and compliance.
(b) Any candidate desiring to avail himself
of "Comelec Space" from newspapers or
publications based in the Metropolitan
Manila Area shall submit an application
therefor, in writing, to the Committee on
Mass Media of the Commission. Any
candidate desiring to avail himself of
"Comelec Space" in newspapers or
publications based in the provinces shall
submit his application therefor, in writing, to
the Provincial Election Supervisor
concerned. Applications for availment of
"Comelec Space" maybe filed at any time
from the date of effectivity of this
Resolution.
(c) The Committee on Mass Media and the
Provincial Election Supervisors shall allocate
available "Comelec Space" among the
candidates concerned by lottery of which
said candidates shall be notified in advance,
in writing, to be present personally or by
representative to witness the lottery at the
date, time and place specified in the notice.
Any party objecting to the result of the
lottery may appeal to the Commission.
(d) The candidates concerned shall be
notified by the Committee on Mass Media or
the Provincial Election Supervisor, as the

Sec. 8. Undue Reference to

Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow
to be printed or published in the news,
opinion, features, or other sections of the
newspaper or publication accounts or
comments which manifestly favor or oppose
any candidate or political party by unduly or
repeatedly referring to or including therein
said candidate or political party. However,
unless the facts and circumstances clearly
indicate otherwise, the Commission will
respect the determination by the publisher
and/or editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy and of
public interest. (Emphasis supplied)
Apparently in implementation of this Resolution, Comelec
through Commissioner Regalado E. Maambong sent identical
letters, dated 22 March 1995, to various publishers of
newspapers like the Business World, the Philippine Star, the
Malaya and the Philippine Times Journal, all members of PPI.
These letters read as follows:
This is to advise you that pursuant to
Resolution No. 2772 of the Commission on
Elections, you are directed to provide free
print space of not less than one half (1/2)
page for use as "Comelec Space" or similar
to the print support which you have
extended during the May 11, 1992
synchronized elections which was 2 full
pages for each political party fielding
senatorial candidates, from March 6, 1995
to May 6, 1995, to make known their
qualifications, their stand on public issues
and their platforms and programs of
government.
We shall be informing the political parties
and candidates to submit directly to you
their pictures, biographical data, stand on
key public issues and platforms of
government either as raw data or in the
form of positives or camera-ready materials.
Please be reminded that the political
parties/candidates may be accommodated
in your publication any day upon receipt of
their materials until May 6, 1995 which is
the last day for campaigning.
We trust you to extend your full support and
cooperation in this regard. (Emphasis
supplied)
In this Petition for Certiorari and Prohibition with prayer for the
issuance of a Temporary Restraining Order, PPI asks us to
declare Comelec Resolution No. 2772 unconstitutional and
void on the ground that it violates the prohibition imposed by
the Constitution upon the government, and any of its
agencies, against the taking of private property for public use
without just compensation. Petitioner also contends that the
22 March 1995 letter directives of Comelec requiring
publishers to give free "Comelec Space" and at the same time
process raw data to make it camera-ready, constitute
impositions of involuntary servitude, contrary to the
provisions of Section 18 (2), Article III of the 1987
Constitution. Finally, PPI argues that Section 8 of Comelec
Resolution No. 2772 is violative of the constitutionally
guaranteed freedom of speech, of the press and of
expression. 1
On 20 April 1995, this Court issued a Temporary Restraining
Order enjoining Comelec from enforcing and implementing
Section 2 of Resolution No. 2772, as well as the Comelec
directives addressed to various print media enterprises all
dated 22 March 1995. The Court also required the respondent
to file a Comment on the Petition.
The Office of the Solicitor General filed its Comment on behalf
of respondent Comelec alleging that Comelec Resolution No.
2772 does not impose upon the publishers any obligation to
provide free print space in the newspapers as it does not
provide any criminal or administrative sanction for non-

compliance with that Resolution. According to the Solicitor

General, the questioned Resolution merely established
guidelines to be followed in connection with the procurement
of "Comelec space," the procedure for and mode of allocation
of such space to candidates and the conditions or
requirements for the candidate's utilization of the "Comelec
space" procured. At the same time, however, the Solicitor
General argues that even if the questioned Resolution and its
implementing letter directives are viewed as mandatory, the
same would nevertheless be valid as an exercise of the police
power of the State. The Solicitor General also maintains that
Section 8 of Resolution No. 2772 is a permissible exercise of
the power of supervision or regulation of the Comelec over
the communication and information operations of print media
enterprises during the election period to safeguard and
ensure a fair, impartial and credible election. 2
At the oral hearing of this case held on 28 April 1995,
respondent Comelec through its Chairman, Hon. Bernardo
Pardo, in response to inquiries from the Chief Justice and other
Members of the Court, stated that Resolution No. 2772,
particularly Section 2 thereof and the 22 March 1995 letters
dispatched to various members of petitioner PPI, were not
intended to compel those members to supply Comelec with
free print space. Chairman Pardo represented to the Court
that Resolution and the related letter-directives were merely
designed to solicit from the publishers the same free print
space which many publishers had voluntarily given to
Comelec during the election period relating to the 11 May
1992 elections. Indeed, the Chairman stated that the Comelec
would, that very afternoon, meet and adopt an appropriate
amending or clarifying resolution, a certified true copy of
which would forthwith be filed with the Court.
On 5 May 1995, the Court received from the Office of the
Solicitor General a manifestation which attached a copy of
Comelec Resolution No. 2772-A dated 4 May 1995. The
operative portion of this Resolution follows:
NOW THEREFORE, pursuant to the powers
vested in it by the Constitution, the
Omnibus Election Code, Republic Acts No.
6646 and 7166 and other election laws, the
Commission on Elections RESOLVED to
clarify Sections 2 and 8 of Res. No. 2772 as
follows:
1.
Section
2 of Res.
No.
2772
shall not
be
construe
d to
mean as
requirin
g
publishe
rs of the
different
mass
media
print
publicati
ons to
provide
print
space
under
pain of
prosecut
ion,
whether
administ
rative,
civil or
criminal,
there
being no
sanction
or
penalty
for
violation
of said
Section
provided
for
either in
said
Resoluti
on or in
Section
90 of
Batas
Pamban

sa Blg.
881,
otherwis
e known
as the
Omnibus
Election
Code, on
the
grant of
"Comele
c
space."
2.
Section
8 of Res.
No.
2772
shall not
be
construe
d to
mean as
constitut
ing prior
restraint
on the
part of
publishe
rs with
respect
to the
printing
or
publicati
on of
material
s in the
news,
opinion,
features
or other
sections
of their
respecti
ve
publicati
ons or
other
account
s or
commen
ts, it
being
clear
from the
last
sentenc
e of said
Section
8 that
the
Commis
sion
shall,
"unless
the facts
and
circumst
ances
clearly
indicate
otherwis
e...
respect
the
determi
nation
by the
publishe
r and/or
editors
of the
newspa
pers or
publicati
ons that
the
account
s or
views
publishe
d are
significa
nt,
newswo
rthy and
of public

interest.
"
This Resolution shall take effect upon
approval. (Emphasis in the original)
While, at this point, the Court could perhaps simply dismiss
the Petition for Certiorari and Prohibition as having become
moot and academic, we consider it not inappropriate to pass
upon the first constitutional issue raised in this case. Our hope
is to put this issue to rest and prevent its resurrection.
Section 2 of Resolution No. 2772 is not a model of clarity in
expression. Section 1 of Resolution No. 2772-A did not try to
redraft Section 2; accordingly, Section 2 of Resolution No.
2772 persists in its original form. Thus, we must point out
that, as presently worded, and in particular as interpreted and
applied by the Comelec itself in its 22 March 1995 letterdirectives to newspaper publishers, Section 2 of Resolution
No. 2772 is clearly susceptible of the reading that petitioner
PPI has given it. That Resolution No. 2772 does not, in express
terms, threaten publishers who would disregard it or its
implementing letters with some criminal or other sanction,
does not by itself demonstrate that the Comelec's original
intention was simply to solicit or request voluntary donations
of print space from publishers. A written communication
officially directing a print media company to supply free print
space, dispatched by a government (here a constitutional)
agency and signed by a member of the Commission
presumably legally authorized to do so, is bound to produce a
coercive effect upon the company so addressed. That the
agency may not be legally authorized to impose, or cause the
imposition of, criminal or other sanctions for disregard of such
directions, only aggravates the constitutional difficulties
inhearing in the present situation. The enactment or addition
of such sanctions by the legislative authority itself would be
open to serious constitutional objection.
To compel print media companies to donate "Comelec-space"
of the dimensions specified in Section 2 of Resolution No.
2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2
failed to specify the intended frequency of such compulsory
"donation:" only once during the period from 6 March 1995 (or
21 March 1995) until 12 May 1995? or everyday or once a
week? or as often as Comelec may direct during the same
period? The extent of the taking or deprivation is not
insubstantial; this is not a case of a de minimis temporary
limitation or restraint upon the use of private property. The
monetary value of the compulsory "donation," measured by
the advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas, may be
very substantial indeed.
The taking of print space here sought to be effected may first
be appraised under the rubric of expropriation of private
personal property for public use. The threshold requisites for a
lawful taking of private property for public use need to be
examined here: one is the necessity for the taking; another is
the legal authority to effect the taking. The element of
necessity for the taking has not been shown by respondent
Comelec. It has not been suggested that the members of PPI
are unwilling to sell print space at their normal rates to
Comelec for election purposes. Indeed, the unwillingness or
reluctance of Comelec to buy print space lies at the heart of
the problem. 3 Similarly, it has not been suggested, let alone
demonstrated, that Comelec has been granted the power of
eminent domain either by the Constitution or by the
legislative authority. A reasonable relationship between that
power and the enforcement and administration of election
laws by Comelec must be shown; it is not casually to be
assumed.
That the taking is designed to subserve "public use" is not
contested by petitioner PPI. We note only that, under Section
3 of Resolution No. 2772, the free "Comelec space" sought by
the respondent Commission would be used not only for
informing the public about the identities, qualifications and
programs of government of candidates for elective office but
also for "dissemination of vital election information"
(including, presumably, circulars, regulations, notices,
directives, etc. issued by Comelec). It seems to the Court a
matter of judicial notice that government offices and agencies
(including the Supreme Court) simply purchase print space, in
the ordinary course of events, when their rules and
regulations, circulars, notices and so forth need officially to be
brought to the attention of the general public.
The taking of private property for public use is, of course,
authorized by the Constitution, but not without payment of
"just compensation" (Article III, Section 9). And apparently the
necessity of paying compensation for "Comelec space" is
precisely what is sought to be avoided by respondent
Commission, whether Section 2 of Resolution No. 2772 is read
as petitioner PPI reads it, as an assertion of authority to
require newspaper publishers to "donate" free print space for

Comelec purposes, or as an exhortation, or perhaps an

appeal, to publishers to donate free print space, as Section 1
of Resolution No. 2772-A attempts to suggest. There is
nothing at all to prevent newspaper and magazine publishers
from voluntarily giving free print space to Comelec for the
purposes contemplated in Resolution No. 2772. Section 2 of
Resolution No. 2772 does not, however, provide a
constitutional basis for compelling publishers, against their
will, in the kind of factual context here present, to provide free
print space for Comelec purposes. Section 2 does not
constitute a valid exercise of the power of eminent domain.
We would note that the ruling here laid down by the Court is
entirely in line with the theory of democratic representative
government. The economic costs of informing the general
public about the qualifications and programs of those seeking
elective office are most appropriately distributed as widely as
possible throughout our society by the utilization of public
funds, especially funds raised by taxation, rather than cast
solely on one small sector of society, i.e., print media
enterprises. The benefits which flow from a heightened level
of information on and the awareness of the electoral process
are commonly thought to be community-wide; the burdens
should be allocated on the same basis.
As earlier noted, the Solicitor General also contended that
Section 2 of Resolution No. 2772, even if read as compelling
publishers to "donate" "Comelec space, " may be sustained as
a valid exercise of the police power of the state. This
argument was, however, made too casually to require
prolonged consideration on our part. Firstly, there was no
effort (and apparently no inclination on the part of Comelec)
to show that the police power essentially a power of
legislation has been constitutionally delegated to
respondent Commission. 4 Secondly, while private property
may indeed be validly taken in the legitimate exercise of the
police power of the state, there was no attempt to show
compliance in the instant case with the requisites of a lawful
taking under the police power. 5
Section 2 of Resolution No. 2772 is a blunt and heavy
instrument that purports, without a showing of existence of a
national emergency or other imperious public necessity,
indiscriminately and without regard to the individual business
condition of particular newspapers or magazines located in
differing parts of the country, to take private property of
newspaper or magazine publishers. No attempt was made to
demonstrate that a real and palpable or urgent necessity for
the taking of print space confronted the Comelec and that
Section 2 of Resolution No. 2772 was itself the only
reasonable and calibrated response to such necessity
available to the Comelec. Section 2 does not constitute a valid
exercise of the police power of the State.
We turn to Section 8 of Resolution No. 2772, which needs to
be quoted in full again:
Sec. 8. Undue Reference to
Candidates/Political Parties in Newspapers.
No newspaper or publication shall allow
to be printed or published in the news,
opinion, features, or other sections of the
newspaper or publication accounts or
comments which manifestly favor or oppose
any candidate or political party by unduly or
repeatedly referring to or including therein
said candidate or political party. However,
unless the facts and circumstances clearly
indicate otherwise, the Commission will
respect the determination by the publisher
and/or editors of the newspapers or
publications that the accounts or views
published are significant, newsworthy and of
public interest.
It is not easy to understand why Section 8 was included at all
in Resolution No. 2772. In any case, Section 8 should be
viewed in the context of our decision in National Press Club v.
Commission on Elections. 6 There the Court sustained the
constitutionality of Section 11 (b) of R.A. No. 6646, known as
the Electoral Reforms Law of 1987, which prohibits the sale or
donation of print space and airtime for campaign or other
political purposes, except to the Comelec. In doing so, the
Court carefully distinguished (a) paid political advertisements
which are reached by the prohibition of Section 11 (b), from
(b) the reporting of news, commentaries and expressions of
belief or opinion by reporters, broadcasters, editors,
commentators or columnists which fall outside the scope of
Section 11 (b) and which are protected by the constitutional
guarantees of freedom of speech and of the press:
Secondly, and more importantly, Section 11
(b) is limited in its scope of application.
Analysis of Section 11 (b) shows that it
purports to apply only to the purchase and
sale, including purchase and sale disguised

as a donation, of print space and air time for

campaign or other political purposes.
Section 11 (b) does not purport in any way
to restrict the reporting by newspapers or
radio or television stations of news or newsworthy events relating to candidates, their
qualifications, political parties and programs
of government. Moreover, Section 11 (b)
does not reach commentaries and
expressions of belief or opinion by reporters
or broadcaster or editors or commentators
or columnists in respect of candidates, their
qualifications, and programs and so forth, so
long at least as such comments, opinions
and beliefs are not in fact advertisements
for particular candidates covertly paid for. In
sum, Section 11 (b) is not to be read as
reaching any report or commentary or other
coverage that, in responsible media, is not
paid for by candidates for political office.
We read Section 11 (b) as designed to cover
only paid political advertisements of
particular candidates.
The above limitation in scope of application
of Section 11 (b) that it does not restrict
either the reporting of or the expression of
belief or opinion or comment upon the
qualifications and programs and activities of
any and all candidates for office
constitutes the critical distinction which
must be made between the instant case and
that of Sanidad v. Commission on
Elections. . . . 7 (Citations omitted; emphasis
supplied)
Section 8 of Resolution No. 2772 appears to represent the
effort of the Comelec to establish a guideline for
implementation of the above-quoted distinction and doctrine
in National Press Club an effort not blessed with evident
success. Section 2 of Resolution No. 2772-A while possibly
helpful, does not add substantially to the utility of Section 8 of
Resolution No. 2772. The distinction between paid political
advertisements on the one hand and news reports,
commentaries and expressions of belief or opinion by
reporters, broadcasters, editors, etc. on the other hand, can
realistically be given operative meaning only in actual cases
or controversies, on a case-to-case basis, in terms of very
specific sets of facts.
At all events, the Court is bound to note that PPI has failed to
allege any specific affirmative action on the part of Comelec
designed to enforce or implement Section 8. PPI has not
claimed that it or any of its members has sustained actual or
imminent injury by reason of Comelec action under Section 8.
Put a little differently, the Court considers that the precise
constitutional issue here sought to be raised whether or not
Section 8 of Resolution No. 2772 constitutes a permissible
exercise of the Comelec's power under Article IX, Section 4 of
the Constitution to
supervise or regulate the enjoyment or
utilization of all franchise or permits for the
operation of media of communication or
information [for the purpose of ensuring]
equal opportunity, time and space, and the
right of reply, including reasonable, equal
rates therefore, for public information
campaigns and forums among candidates in
connection with the objective of holding
free, orderly honest, peaceful and credible
elections
is not ripe for judicial review for lack of an actual case or
controversy involving, as the very lis mota thereof, the
constitutionality of Section 8.
Summarizing our conclusions:
1. Section 2 of Resolution No. 2772, in its present form and as
interpreted by Comelec in its 22 March 1995 letter directives,
purports to require print media enterprises to "donate" free
print space to Comelec. As such, Section 2 suffers from a fatal
constitutional vice and must be set aside and nullified.
2. To the extent it pertains to Section 8 of Resolution No.
2772, the Petition for Certiorari and Prohibition must be
dismissed for lack of an actual, justiciable case or controversy.
WHEREFORE, for all the foregoing, the Petition for Certiorari
and Prohibition is GRANTED in part and Section 2 of Resolution
No. 2772 in its present form and the related letter-directives
dated 22 March 1995 are hereby SET ASIDE as null and void,
and the Temporary Restraining Order is hereby MADE
PERMANENT. The Petition is DISMISSED in part, to the extent it

relates to Section 8 of Resolution No. 2772. No

pronouncement as to costs.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo,
Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ.,
concur.
Quiason, J., is on leave
G.R. No. 132922 April 21, 1998
TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE
PHILIPPINES, INC. and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:
In Osmea v. COMELEC, G.R. No. 132231, decided March 31,
1998, 1 we upheld the validity of 11(b) of R.A. No. 6646
which prohibits the sale or donation of print space or air time
for political ads, except to the Commission on Elections under
90, of B.P. No. 881, the Omnibus Election Code, with respect
to print media, and 92, with respect to broadcast media. In
the present case, we consider the validity of 92 of B.P. Blg.
No. 881 against claims that the requirement that radio and
television time be given free takes property without due
process of law; that it violates the eminent domain clause of
the Constitution which provides for the payment of just
compensation; that it denies broadcast media the equal
protection of the laws; and that, in any event, it violates the
terms of the franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the
Philippines, Inc. is an organization of lawyers of radio and
television broadcasting companies. They are suing as citizens,
taxpayers, and registered voters. The other petitioner, GMA
Network, Inc., operates radio and television broadcasting
stations throughout the Philippines under a franchise granted
by Congress.
Petitioners challenge the validity of 92 on the ground (1) that
it takes property without due process of law and without just
compensation; (2) that it denies radio and television
broadcast companies the equal protection of the laws; and (3)
that it is in excess of the power given to the COMELEC to
supervise or regulate the operation of media of
communication or information during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of
petitioner Telecommunications and Broadcast Attorneys of the
Philippines, Inc. (TELEBAP). As already noted, its members
assert an interest as lawyers of radio and television
broadcasting companies and as citizens, taxpayers, and
registered voters.
In those cases 2 in which citizens were authorized to sue, this
Court upheld their standing in view of the "transcendental
importance" of the constitutional question raised which
justified the granting of relief. In contrast, in the case at bar,
as will presently be shown, petitioner's substantive claim is
without merit. To the extent, therefore, that a party's standing
is determined by the substantive merit of his case or
preliminary estimate thereof, petitioner TELEBAP must be held
to be without standing. Indeed, a citizen will be allowed to
raise a constitutional question only when he can show that he
has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government; the
injury fairly is fairly traceable to the challenged action; and
the injury is likely to be redressed by a favorable action. 3
Members of petitioner have not shown that they have suffered
harm as a result of the operation of 92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as
registered voters since this case does not concern their right
of suffrage. Their interest in 92 of B.P. Blg. 881 should be
precisely in upholding its validity.
Much less do they have an interest as taxpayers since this
case does not involve the exercise by Congress of its taxing or
spending power. 4 A party suing as a taxpayer must
specifically show that he has a sufficient interest in preventing
the illegal expenditure of money raised by taxation and that
he will sustain a direct injury as a result of the enforcement of
the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing
to assert the rights of radio and television broadcasting

companies. Standing jus tertii will be recognized only if it can

be shown that the party suing has some substantial relation to
the third party, or that the third party cannot assert his
constitutional right, or that the eight of the third party will be
diluted unless the party in court is allowed to espouse the
third party's constitutional claim. None of these circumstances
is here present. The mere fact that TELEBAP is composed of
lawyers in the broadcast industry does not entitle them to
bring this suit in their name as representatives of the affected
companies.
Nevertheless, we have decided to take this case since the
other petitioner, GMA Network, Inc., appears to have the
requisite standing to bring this constitutional challenge.
Petitioner operates radio and television broadcast stations in
the Philippines affected by the enforcement of 92 of B.P. Blg.
881 requiring radio and television broadcast companies to
provide free air time to the COMELEC for the use of
candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several
million pesos in providing COMELEC Time in connection with
the 1992 presidential election and the 1995 senatorial
election and that it stands to suffer even more should it be
required to do so again this year. Petitioner's allegation that it
will suffer losses again because it is required to provide free
air time is sufficient to give it standing to question the validity
of 92. 5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmea v. COMELEC, 11(b)
of R.A. No. 6646 and 90 and 92 of the B.P. Blg. 881 are part
and parcel of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of
mass media for political campaigns. These statutory
provisions state in relevant parts:
R.A. No. 6646
Sec. 11. Prohibited Forms of Election Propaganda.
In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg.
881, it shall be unlawful:
xxx xxx xxx
(b) for any newspapers, radio broadcasting or
television station, or other mass media, or any
person making use of the mass media to sell or to
give free of charge print space or air time for
campaign or other political purposes except to the
Commission as provided under Section 90 and 92 of
Batas Pambansa Blg. 881. Any mass media
columnist, commentator, announcer or personality
who is a candidate for any elective public office shall
take a leave of absence from his work as such during
the campaign period.
B.P. Blg. 881, (Omnibus Election Code)
Sec. 90. Comelec space. The Commission shall
procure space in at least one newspaper of general
circulation in every province or city; Provided,
however, That in the absence of said newspaper,
publication shall be done in any other magazine or
periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by
the Commission among all candidates within the area
in which the newspaper is circulated. (Sec. 45, 1978
EC).
Sec. 92. Comelec time. The commission shall
procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of
coverage of all radio and television stations. For this
purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to
provide radio or television time, free of charge,
during the period of the campaign. (Sec. 46, 1978
EC)

Thus, the law prohibits mass media from selling or donating

print space and air time to the candidates and requires the
COMELEC instead to procure print space and air time for
allocation to the candidates. It will be noted that while 90 of
B.P. Blg. 881 requires the COMELEC to procure print space
which, as we have held, should be paid for, 92 states that air
time shall be procured by the COMELEC free of charge.
Petitioners contend that 92 of BP Blg. 881 violates the due
process clause 6 and the eminent domain provision 7 of the
Constitution by taking air time from radio and television
broadcasting stations without payment of just compensation.
Petitioners claim that the primary source of revenue of the
radio and television stations is the sale of air time to
advertisers and that to require these stations to provide free
air time is to authorize a taking which is not "a de minimis
temporary limitation or restraint upon the use of private
property." According to petitioners, in 1992, the GMA Network,
Inc. lost P22,498,560.00 in providing free air time of one (1)
hour every morning from Mondays to Fridays and one (1) hour
on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime
time) and, in this year's elections, it stands to lose
P58,980,850.00 in view of COMELEC'S requirement that radio
and television stations provide at least 30 minutes of prime
time daily for the COMELEC Time. 8
Petitioners' argument is without merit, All broadcasting,
whether by radio or by television stations, is licensed by the
government. Airwave frequencies have to be allocated as
there are more individuals who want to broadcast than there
are frequencies to assign. 9 A franchise is thus a privilege
subject, among other things, to amended by Congress in
accordance with the constitutional provision that "any such
franchise or right granted . . . shall be subject to amendment,
alteration or repeal by the Congress when the common good
so requires." 10
The idea that broadcast stations may be required to provide
COMELEC Time free of charge is not new. It goes back to the
Election Code of 1971 (R.A. No. 6388), which provided:
Sec. 49. Regulation of election propaganda through
mass media. (a) The franchise of all radio
broadcasting and television stations are hereby
amended so as to require each such station to
furnish free of charge, upon request of the
Commission [on Elections], during the period of sixty
days before the election not more than fifteen
minutes of prime time once a week which shall be
known as "Comelec Time" and which shall be used
exclusively by the Commission to disseminate vital
election information. Said "Comelec Time" shall be
considered as part of the public service time said
stations are required to furnish the Government for
the dissemination of public information and
education under their respective franchises or
permits.
The provision was carried over with slight modification by the
1978 Election Code (P.D. No. 1296), which provided:
Sec. 46. COMELEC Time. The Commission [on
Elections] shall procure radio and television time to
be known as "COMELEC Time" which shall be
allocated equally and impartially among the
candidates within the area of coverage of said radio
and television stations. For this purpose, the
franchises of all radio broadcasting and television
stations are hereby amended so as to require such
stations to furnish the Commission radio or television
time, free of charge, during the period of the
campaign, at least once but not oftener than every
other day.
Substantially the same provision is now embodied in 92 of
B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by
amendment of the franchises of radio and television
broadcast stations and, until the present case was brought,
such provisions had not been thought of as taking property
without just compensation. Art. XII, 11 of the Constitution
authorizes the amendment of franchises for "the common
good." What better measure can be conceived for the
common good than one for free air time for the benefit not
only of candidates but even more of the public, particularly
the voters, so that they will be fully informed of the issues in
an election? "[I]t is the right of the viewers and listeners, not
the right of the broadcasters, which is paramount." 11
Nor indeed can there be any constitutional objection to the
requirement that broadcast stations give free air time. Even in
the United States, there are responsible scholars who believe
that government controls on broadcast media can
constitutionally be instituted to ensure diversity of views and

attention to public affairs to further the system of free

expression. For this purpose, broadcast stations may be
required to give free air time to candidates in an election. 12
Thus, Professor Cass R. Sunstein of the University of Chicago
Law School, in urging reforms in regulations affecting the
broadcast industry, writes:
Elections. We could do a lot to improve coverage of
electoral campaigns. Most important, government
should ensure free media time for candidates. Almost
all European nations make such provisions; the
United States does not. Perhaps government should
pay for such time on its own. Perhaps broadcasters
should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time
would count in favor of the grant of a license in the
first instance. Steps of this sort would simultaneously
promote attention to public affairs and greater
diversity of view. They would also help overcome the
distorting effects of "soundbites" and the corrosive
financial pressures faced by candidates in seeking
time on the media. 13
In truth, radio and television broadcasting companies, which
are given franchises, do not own the airwaves and frequencies
through which they transmit broadcast signals and images.
They are merely given the temporary privilege of using them.
Since a franchise is a mere privilege, the exercise of the
privilege may reasonably be burdened with the performance
by the grantee of some form of public service. Thus, in De
Villata v. Stanley, 14 a regulation requiring interisland vessels
licensed to engage in the interisland trade to carry mail and,
for this purpose, to give advance notice to postal authorities
of date and hour of sailings of vessels and of changes of
sailing hours to enable them to tender mail for transportation
at the last practicable hour prior to the vessel's departure,
was held to be a reasonable condition for the state grant of
license. Although the question of compensation for the
carriage of mail was not in issue, the Court strongly implied
that such service could be without compensation, as in fact
under Spanish sovereignty the mail was carried free. 15
In Philippine Long Distance Telephone Company v. NTC, 16 the
Court ordered the PLDT to allow the interconnection of its
domestic telephone system with the international gateway
facility of Eastern Telecom. The Court cited (1) the provisions
of the legislative franchise allowing such interconnection; (2)
the absence of any physical, technical, or economic basis for
restricting the linking up of two separate telephone systems;
and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more
moderate cost, as a result of interconnection.

In the granting of the privilege to operate broadcast stations

and thereafter supervising radio and television stations, the
state spends considerable public funds in licensing and
supervising such stations. 18 It would be strange if it cannot
even require the licensees to render public service by giving
free air time.
Considerable effort is made in the dissent of Mr. Justice
Panganiban to show that the production of television
programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The
dissent cites the claim of GMA Network that the grant of free
air time to the COMELEC for the duration of the 1998
campaign period would cost the company P52,380,000,
representing revenue it would otherwise earn if the air time
were sold to advertisers, and the amount of P6,600,850,
representing the cost of producing a program for the
COMELEC Time, or the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in
unrealized revenue from advertising is based on the
assumption that air time is "finished product" which, it is said,
become the property of the company, like oil produced from
refining or similar natural resources after undergoing a
process for their production. But air time is not owned by
broadcast companies. As held in Red Lion Broadcasting Co. v.
F.C.C., 19 which upheld the right of a party personally attacked
to reply, "licenses to broadcast do not confer ownership of
designated frequencies, but only the temporary privilege of
using them." Consequently, "a license permits broadcasting,
but the license has no constitutional right to be the one who
holds the license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the First
Amendment which prevents the Government from requiring a
licensee to share his frequency with others and to conduct
himself as a proxy or fiduciary with obligations to present
those views and voices which are representative of his
community and which would otherwise, by necessity, be
barred from the airwaves." 20 As radio and television broadcast
stations do not own the airwaves, no private property is taken
by the requirement that they provide air time to the
COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil
Code which says that "the air lanes themselves 'are not
property because they cannot be appropriated for the benefit
of any individual.'" (p. 5) That means neither the State nor the
stations own the air lanes. Yet the dissent also says that "The
franchise holders can recover their huge investments only by
selling air time to advertisers." (p. 13) If air lanes cannot be
appropriated, how can they be used to produce air time which
the franchise holders can sell to recover their investment?
There is a contradiction here.

Similarly, in the earlier case of PLDT v. NTC, 17 it was held:

Such regulation of the use and ownership of
telecommunications systems is in the exercise of the
plenary police power of the State for the promotion
of the general welfare. The 1987 Constitution
recognizes the existence of that power when it
provides:
Sec. 6. The use of property bears a
social function, and all economic
agents shall contribute to the
common good. Individuals and
private groups, including
corporations, cooperatives, and
similar collective organizations,
shall have the right to own,
establish, and operate economic
enterprises, subject to the duty of
the State to promote distributive
justice and to intervene when the
common good so demands (Article
XII).
The interconnection which has been required of PLDT
is a form of "intervention" with property rights
dictated by "the objective of government to promote
the rapid expansion of telecommunications services
in all areas of the Philippines, . . . to maximize the
use of telecommunications facilities available, . . . in
recognition of the vital role of communications in
nation building . . . and to ensure that all users of the
public telecommunications service have access to all
other users of the service wherever they may be
within the Philippines at an acceptable standard of
service and at reasonable cost" (DOTC Circular No.
90-248). Undoubtedly, the encompassing objective is
the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated
authority to regulate the use of telecommunications
networks when it decreed interconnection.

As to the additional amount of P6,600,850, it is claimed that

this is the cost of producing a program and it is for such items
as "sets and props," "video tapes," "miscellaneous (other
rental, supplies, transportation, etc.)," and "technical facilities
(technical crew such as director and cameraman as well as 'on
air plugs')." There is no basis for this claim. Expenses for
these items will be for the account of the candidates.
COMELEC Resolution No. 2983, 6(d) specifically provides in
this connection:
(d) Additional services such as tape-recording or
video-taping of programs, the preparation of visual
aids, terms and condition thereof, and consideration
to be paid therefor may be arranged by the
candidates with the radio/television station
concerned. However, no radio/television station shall
make any discrimination among candidates relative
to charges, terms, practices or facilities for in
connection with the services rendered.
It is unfortunate that in the effort to show that there is taking
of private property worth millions of pesos, the
unsubstantiated charge is made that by its decision the Court
permits the "grand larceny of precious time," and allows itself
to become "the people's unwitting oppressor." The charge is
really unfortunate. In Jackson v. Rosenbaun, 21 Justice Holmes
was so incensed by the resistance of property owners to the
erection of party walls that he was led to say in his original
draft, "a statute, which embodies the community's
understanding of the reciprocal rights and duties of
neighboring landowners, does not need to invoke the penalty
larceny of the police power in its justification." Holmes's
brethren corrected his taste, and Holmes had to amend the
passage so that in the end it spoke only of invoking "the
police power." 22 Justice Holmes spoke of the "petty larceny" of
the police power. Now we are being told of the "grand larceny
[by means of the police power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner

Petitioners claim that 92 is an invalid amendment of R.A. No.

7252 which granted GMA Network, Inc. a franchise for the
operation of radio and television broadcasting stations. They
argue that although 5 of R.A. No. 7252 gives the government
the power to temporarily use and operate the stations of
petitioner GMA Network or to authorize such use and
operation, the exercise of this right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. A special right is
hereby reserved to the President of the Philippines, in
times of rebellion, public peril, calamity, emergency,
disaster or disturbance of peace and order, to
temporarily take over and operate the stations of the
grantee, to temporarily suspend the operation of any
station in the interest of public safety, security and
public welfare, or to authorize the temporary use and
operation thereof by any agency of the Government,
upon due compensation to the grantee, for the use of
said stations during the period when they shall be so
operated.
The basic flaw in petitioner's argument is that it assumes that
the provision for COMELEC Time constitutes the use and
operation of the stations of the GMA Network, Inc., This is not
so. Under 92 of B.P. Blg. 881, the COMELEC does not take
over the operation of radio and television stations but only the
allocation of air time to the candidates for the purpose of
ensuring, among other things, equal opportunity, time, and
the right to reply as mandated by the Constitution. 23
Indeed, it is wrong to claim an amendment of petitioner's
franchise for the reason that B.P. Blg. 881, which is said to
have amended R.A. No. 7252, actually antedated it. 24 The
provision of 92 of B.P. Blg. 881 must be deemed instead to be
incorporated in R.A. No. 7252. And, indeed, 4 of the latter
statute does.
For the fact is that the duty imposed on the GMA Network, Inc.
by its franchise to render "adequate public service time"
implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is
to enable the government to communicate with the people on
matters of public interest. Thus, R.A. No. 7252 provides:
Sec. 4. Responsibility to the Public. The grantee
shall provide adequate public service time to enable
the Government, through the said broadcasting
stations, to reach the population on important public
issues; provide at all times sound and balanced
programming; promote public participation such as in
community programming; assist in the functions of
public information and education; conform to the
ethics of honest enterprise; and not use its station for
the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of
deliberately false information or willful
misrepresentation, or to the detriment of the public
interest, or to incite, encourage, or assist in
subversive or treasonable acts. (Emphasis added).
It is noteworthy that 40 of R.A. No. 6388, from which 92 of
B.P. Blg. 881 was taken, expressly provided that the COMELEC
Time should "be considered as part of the public service time
said stations are required to furnish the Government for the
dissemination of public information and education under their
respective franchises or permits." There is no reason to
suppose that 92 of B.P. Blg. 881 considers the COMELEC Time
therein provided to be otherwise than as a public service
which petitioner is required to render under 4 of its charter
(R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not an invalid
amendment of petitioner's franchise but the enforcement of a
duty voluntarily assumed by petitioner in accepting a public
grant of privilege.
Thus far, we have confined the discussion to the provision of
92 of B.P. Blg. 881 for free air time without taking into
account COMELEC Resolution No. 2983-A, 2 of which states:
Sec. 2. Grant of "Comelec Time." Every radio
broadcasting and television station operating under
franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of
prime time daily, to be known as "Comelec Time",
effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective
offices, until May 9, 1998. (Emphasis added).
This is because the amendment providing for the payment of
"just compensation" is invalid, being in contravention of 92 of
B.P. Blg. 881 that radio and television time given during the
period of the campaign shall be "free of charge." Indeed,
Resolution No. 2983 originally provided that the time allocated
shall be "free of charge," just as 92 requires such time to be

given "free of charge." The amendment appears to be a

reaction to petitioner's claim in this case that the original
provision was unconstitutional because it allegedly authorized
the taking of property without just compensation.
The Solicitor General, relying on the amendment, claims that
there should be no more dispute because the payment of
compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking,
amend a statute of Congress. Since 2 of Resolution No. 2983A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the
COMELEC in procuring free air time and that "theoretically the
COMELEC can demand all of the air time of such stations." 25
Petitioners do not claim that COMELEC Resolution No. 2983-A
arbitrarily sequesters radio and television time. What they
claim is that because of the breadth of the statutory
language, the provision in question is susceptible of
"unbridled, arbitrary and oppressive exercise." 26
The contention has no basis. For one, the COMELEC is
required to procure free air time for candidates "within the
area of coverage" of a particular radio or television
broadcaster so that it cannot, for example, procure such time
for candidates outside that area. At what time of the day and
how much time the COMELEC may procure will have to be
determined by it in relation to the overall objective of
informing the public about the candidates, their qualifications
and their programs of government. As stated in Osmea v.
COMELEC, the COMELEC Time provided for in 92, as well as
the COMELEC Space provided for in 90, is in lieu of paid ads
which candidates are prohibited to have under 11(b) of R.A.
No. 6646. Accordingly, this objective must be kept in mind in
determining the details of the COMELEC Time as well as those
of the COMELEC Space.
There would indeed be objection to the grant of power to the
COMELEC if 92 were so detailed as to leave no room for
accommodation of the demands of radio and television
programming. For were that the case, there could be an
intrusion into the editorial prerogatives of radio and television
stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, 92 singles out radio
and television stations to provide free air time. They contend
that newspapers and magazines are not similarly required as,
in fact, in Philippine Press Institute v. COMELEC, 27 we upheld
their right to the payment of just compensation for the print
space they may provide under 90.
The argument will not bear analysis. It rests on the fallacy that
broadcast media are entitled to the same treatment under the
free speech guarantee of the Constitution as the print media.
There are important differences in the characteristics of the
two media, however, which justify their differential treatment
for free speech purposes. Because of the physical limitations
of the broadcast spectrum, the government must, of
necessity, allocate broadcast frequencies to those wishing to
use them. There is no similar justification for government
allocation and regulation of the print media. 28
In the allocation of limited resources, relevant conditions may
validly be imposed on the grantees or licensees. The reason
for this is that, as already noted, the government spends
public funds for the allocation and regulation of the broadcast
industry, which it does not do in the case of the print media.
To require the radio and television broadcast industry to
provide free air time for the COMELEC Time is a fair exchange
for what the industry gets.
From another point of view, this Court has also held that
because of the unique and pervasive influence of the
broadcast media, "[n]ecessarily . . . the freedom of television
and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media." 29
The broadcast media have also established a uniquely
pervasive presence in the lives of all Filipinos. Newspapers
and current books are found only in metropolitan areas and in
the poblaciones of municipalities accessible to fast and
regular transportation. Even here, there are low income
masses who find the cost of books, newspapers, and

magazines beyond their humble means. Basic needs like food

and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found
everywhere. The television set is also becoming
universal. Their message may be simultaneously
received by a national or regional audience of
listeners including the indifferent or unwilling who
happen to be within reach of a blaring radio or
television set. The materials broadcast over the
airwaves reach every person of every age, persons of
varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose
reactions to inflammatory or offensive speech would
he difficult to monitor or predict. The impact of the
vibrant speech is forceful and immediate. Unlike
readers of the printed work, the radio audience has
lesser opportunity to cogitate, analyze, and reject the
utterance. 30
Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies
them the equal protection of the law has no basis. In addition,
their plea that 92 (free air time) and 11(b) of R.A. No. 6646
(ban on paid political ads) should be invalidated would pave
the way for a return to the old regime where moneyed
candidates could monopolize media advertising to the
disadvantage of candidates with less resources. That is what
Congress tried to reform in 1987 with the enactment of R.A.
No. 6646. We are not free to set aside the judgment of
Congress, especially in light of the recent failure of interested
parties to have the law repealed or at least modified.

distributive justice and to intervene when the common good

so demands."
To affirm the validity of 92 of B.P. Blg. 881 is to hold public
broadcasters to their obligation to see to it that the variety
and vigor of public debate on issues in an election is
maintained. For while broadcast media are not mere common
carriers but entities with free speech rights, they are also
public trustees charged with the duty of ensuring that the
people have access to the diversity of views on political
issues. This right of the people is paramount to the autonomy
of broadcast media. To affirm the validity of 92, therefore, is
likewise to uphold the people's right to information on matters
of public concern. The use of property bears a social function
and is subject to the state's duty to intervene for the common
good. Broadcast media can find their just and highest reward
in the fact that whatever altruistic service they may render in
connection with the holding of elections is for that common
good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno,
Kapunan, Martinez and Quisumbing, JJ., concur.

Separate Opinions

Requirement of COMELEC Time, a

Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate
given to the COMELEC under Art. IX-C, 4 of the Constitution
does not include the power to prohibit. In the first place, what
the COMELEC is authorized to supervise or regulate by Art. IXC, 4 of the Constitution, 31 among other things, is the use by
media of information of their franchises or permits, while what
Congress (not the COMELEC) prohibits is the sale or donation
of print space or air time for political ads. In other words, the
object of supervision or regulation is different from the object
of the prohibition. It is another fallacy for petitioners to
contend that the power to regulate does not include the
power to prohibit. This may have force if the object of the
power were the same.
In the second place, the prohibition in 11(b) of R.A. No. 6646
is only half of the regulatory provision in the statute. The
other half is the mandate to the COMELEC to procure print
space and air time for allocation to candidates. As we said in
Osmea v. COMELEC:
The term political "ad ban" when used to describe
11(b) of R.A. No. 6646, is misleading, for even as
11(b) prohibits the sale or donation of print space
and air time to political candidates, it mandates the
COMELEC to procure and itself allocate to the
candidates space and time in the media. There is no
suppression of political ads but only a regulation of
the time and manner of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this
nature. Instead of leaving candidates to advertise
freely in the mass media, the law provides for
allocation, by the COMELEC of print space and air
time to give all candidates equal time and space for
the purpose of ensuring "free, orderly, honest,
peaceful, and credible elections."
With the prohibition on media advertising by candidates
themselves, the COMELEC Time and COMELEC Space are
about the only means through which candidates can advertise
their qualifications and programs of government. More than
merely depriving their qualifications and programs of
government. More than merely depriving candidates of time
for their ads, the failure of broadcast stations to provide air
time unless paid by the government would clearly deprive the
people of their right to know. Art III, 7 of the Constitution
provides that "the right of the people to information on
matters of public concern shall be recognized," while Art. XII,
6 states that "the use of property bears a social function
[and] the right to own, establish, and operate economic
enterprises [is] subject to the duty of the State to promote

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by
Mr. Justice Vicente V. Mendoza in his ponencia, particularly, in
holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas
Pambansa Blg. 881 is a legitimate exercise of police power of
the State.
The grant of franchise to broadcast media is a privilege
burdened with responsibilities. While it is, primordially, a
business enterprise, it nevertheless, also addresses in many
ways certain imperatives of public service. In Stone vs.
Mississippi (101, U.S. 814, cited in Cruz, Constitutional Law,
1995 ed., p. 40.), a case involving a franchise to sell lotteries
which petitioner claims to be a contract which may not be
impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police
power of a State. Irrevocable grants of property and
franchises may be made if they do not impair the
supreme authority to make laws for the right
government of the State; but no Legislature can
curtail the power of its successors to make such laws
as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in
meeting the standards set forth for its lawful exercise, i.e., (a)
that its utilization is demanded by the interests of the public,
and (b) that the means employed are reasonably necessary,
and not unduly oppressive, for the accomplishment of the
purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A,
particularly Section 2 thereof, as being in contravention of B.P.
No. 881. There is nothing in the law that prohibits the
COMELEC from itself procuring airtime, perhaps longer than
that which can reasonably be allocated, if it believes that in so
opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property
without just compensation. The power of eminent domain is a
power inherent in sovereignty and requires no constitutional
provision to give it force. It is the rightful authority which
exists in every sovereignty, to control and regulate those
rights of a public nature which pertain to its citizens in
common, and to appropriate and control individual property
for the public benefit as the public safety, necessity,
convenience or welfare demand. 1 The right to appropriate
private property to public use, however, lies dormant in the
state until legislative action is had, pointing out the occasions,
the modes, the conditions and agencies for its appropriation. 2
Section 92 of BP 881 states

Sec. 92. Comelec Time The Comelec shall

procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and
impartially among the candidates within the area of
coverage of all radio and television stations. For this
purpose, the franchise of all radio and television
stations are hereby attended so as to provide radio
and television time free of charge during the period
of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on
March 3, 1998 passed Resolution 2983-A, the pertinent
provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." Every radio
broadcasting and television station operating under
franchise shall grant the Commission, upon payment
of just compensation, at least thirty (30) minutes of
prime time daily, to be known as "Comelec Time,"
effective February 10, 1998 for candidates for
President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective
offices, until May 9, 1998.
Section 92 of BP 881, insofar as it requires radio and
television stations to provide Comelec with radio and
television time free of charge is a flagrant violation of the
constitutional mandate that private property shall not be
taken for public use without just compensation. While it is
inherent in the State, the sovereign right to appropriate
property has never been understood to include taking
property for public purposes without the duty and
responsibility of ordering compensation to the individual
whose property has been sacrificed for the good of the
community. Hence, Section 9 Article III of the 1987
Constitution which reads "No private property shall be taken
for public use without just compensation," gives us two
limitations on the power of eminent domain: (1) the purpose
of taking must be for public use and (2) just compensation
must be given to the owner of the private property.
There is, of course, no question that the taking of the property
in the case at bar is for public use, i.e. to ensure that air time
is allocated equally among the candidates, however, there is
no justification for the taking without payment of just
compensation. While Resolution No. 2983-A has provided that
just compensation shall be paid for the 30 minutes of prime
time granted by the television stations to respondent
Comelec, we note that the resolution was passed pursuant to
Section 92 of BP 881 which mandates that radio and
television time be provided to respondent Comelec free of
charge. Since the legislative intent is the controlling element
in determining the administrative powers, rights, privileges
and immunities granted, 3 respondent Comelec may, at any
time, despite the resolution passed, compel television and
radio stations to provide it with airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the
guise of police power regulation which cannot be validly done.
Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction
of property interest to promote public welfare or interest
which involves no compensable taking. When the power of
eminent domain, however, is exercised, property interest is
appropriated and applied to some public purpose,
necessitating compensation therefor. Traditional distinctions
between police power and the power of eminent domain
precluded application of both powers at the same time in the
same subject. 4 Hence, in the case of City of Baguio v.
NAWASA, 5 the Court held that a law requiring the transfer of
all municipal waterworks systems to NAWASA in exchange for
its assets of equivalent value involved the exercise of eminent
domain because the property involved was wholesome and
intended for public use. Property condemned under the
exercise of police power, on the other hand, is noxious or
intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle that
every holder of property, however absolute and unqualified
may be his title, holds it under the implied liability that his use
of it shall not be injurious to the equal enjoyment of others
having an equal right to the enjoyment of their property, nor
injurious to the rights of the community. Rights of property,
like all other social and conventional rights, are subject to
reasonable limitations in their enjoyment as shall prevent
them from being injurious, and to such reasonable restraits
and regulations established by law as the legislature, under
the governing and controlling power vested in them by the
constitution, may think necessary and expedient. 6
In the case of Small Landowners of the Philippines Inc. v.
Secretary of Agrarian Reform, we found occasion to note that
recent trends show a mingling of the police power and the
power of eminent domain, with the latter being used as an
implement of the former like the power of taxation. Citing the
cases of Berman v. Parker 7 and Penn Central Transportation
Co. v. New York City 8 where owners of the Grand Central
Terminal who were not allowed to construct a multi-story

building to preserve a historic landmark were allowed certain

compensatory rights to mitigate the loss caused by the
regulation, this Court is Small Landowners of the Philippines,
Inc. case held that measures prescribing retention limits for
landowners under the Agrarian Reform Law involved the
exercise of police power for the regulation of private property
in accordance with the constitution. And, where to carry out
the regulation, it became necessary to deprive owners of
whatever lands they may own in excess of the maximum area
allowed, the Court held that there was definitely a taking
under the power of eminent domain for which payment of just
compensation was imperative.
The petition before us is no different from the above-cited
case. Insofar as See 92 of BP 881 read in conjunction with Sec
11(b) of RA 6646 restricts the sale or donation of airtime by
radio and television stations during the campaign period to
respondent Comelec, there is an exercise of police power for
the regulation of property in accordance with the Constitution.
To the extent however that Sec 92 of BP 881 mandates that
airtime be provided free of charge to respondent Comelec to
be allocated equally among all candidates, the regulation
exceeds the limits of police power and should be recognized
as a taking. In the case of Pennsylvania Coal v. Mahon, 9
Justice Holmes laid down the limits of police power in this
wise," The general rule is that while property may be
regulated to a certain extent, if the regulation goes too far, it
will be recognized as a taking."
While the power of eminent domain often results in the
appropriation of title to or possession of property, it need not
always be the case. It is a settled rule that neither acquisition
of title nor total destruction of value is essential to taking and
it is usually in cases where title remains with the private
owner that inquiry should be made to determine whether the
impairment of a property is merely regulated or amounts to a
compensable taking. A regulation which deprives any person
of the profitable use of his property constitutes a taking and
entitles him to compensation unless the invasion of rights is
so slight as to permit the regulation to be justified under the
police power. Similarly, a police regulation which unreasonably
restricts the right to use business property for business
purposes, amounts to taking of private property and the
owner may recover therefor. 10 It is also settled jurisprudence
that acquisition of right of way easement falls within the
purview of eminent domain. 11
While there is no taking or appropriation of title to, and
possession of the expropriated property in the case at bar,
there is compensable taking inasmuch as them is a loss of the
earnings for the airtime which the petitioner-intervenors are
compelled to donate. It is a loss which, to paraphrase
Philippine Press Institute v. Comelec, 12 could hardly be
considered "de minimis" if we are to take into account the
monetary value of the compulsory donation measured by the
current advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec, 13 we had
occasion to state that newspapers and other print media are
not compelled to donate free space to respondent Comelec
inasmuch as this would be in violation of the constitutional
provision that no private property shall be taken for public use
without just compensation. We find no cogent reason why
radio and television stations should be treated considering
that their operating expenses as compared to those of the
newspaper and other print media publishers involve
considerably greater amount of financial resources.
The fact that one needs a franchise from government to
establish a radio and television station while no license is
needed to start a newspaper should not be made a basis for
treating broadcast media any differently from the print media
in compelling the former to "donate" airtime to respondent
Comelec. While no franchises and rights are granted except
under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good
so requires, 14 this provides no license for government to
disregard the cardinal rule that corporations with franchises
are as much entitled to due process and equal protection of
laws guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar
as it mandates that radio and television time be provided to
respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of
the Omnibus Election Code 1 which compels all broadcast
stations in the country "to provide radio and television time,
free of charge, during the period of the [election] campaigns,"
which the Commission on Elections shall allocate "equally and
impartially among the candidates . . ." Petitioners contend,
and I agree, that this legal provision is unconstitutional
because it confiscates private property without due process of

law and without payment of just compensation, and denies

broadcast media equal protection of the law.

privilege of using public property. For, as earlier stated,

airwaves are not owned by the government.

In Philippine Press Institute, Inc. (PPI) vs. Commission on

Elections, 2 this Court ruled that print media companies cannot
be required to donate advertising space, free of charge, to the
Comelec for equal allocation among candidates, on the
ground that such compulsory seizure of print space is
equivalent to a proscribed taking of private property for public
use without payment of just compensation. 3

Accordingly, the National Telecommunications Commission

(NTC) was tasked by law to institutionalize this regulation of
the air lanes. To cover the administrative cost of supervision
and regulation, the NTC levies charges, which have been
revised upwards in NTC Memorandum Circular No. 14-8-94
dated August 26, 1994. In accordance with this Circular,
Petitioner GMA Network, Inc., for the year 1996, paid the NTC
P2,880,591 of which P2,501,776.30 was NTC "supervision and
regulation fee," as borne out by its Audited Consolidated
Financial Statements for said year, on file with the Securities
and Exchange Commission. In short, for its work of allocation,
supervision and regulation, the government is adequately
compensated by the broadcast media through the payment of
fees unilaterally set by the former.

The Court's majority in the present case, speaking through the

distinguished Mr. Justice Vicente V. Mendoza, holds, however,
that the foregoing PPI doctrine applies only to print media, not
to broadcast (radio and TV) networks, arguing that "radio and
television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through
which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a
franchise is a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the grantee
of some form of public service." In other words, the majority
theorizes that the forced donation of air time to the Comelec
is a means by which the State gets compensation for the
grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a
theoretical distinction that does not make any real difference.
Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast
frequencies. It merely allocates, supervises and regulates
their proper use. Thus, other than collecting supervision or
regulatory fees which it already does, it cannot exact any
onerous and unreasonable post facto burdens from the
franchise holders, without due process and just compensation.
Moreover, the invocation of the "common good" does not
excuse the unbridled and clearly excessive taking of a
franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the
broadcasting companies already pay rental fees to the
government for their use. Hence, the seizure of air time
cannot be justified by the theory of compensation.
3. Airwaves and frequencies alone, without the radio and
television owner's humongous investments amounting to
billions of pesos, cannot be utilized for broadcasting purposes.
Hence, a forced donation of broadcast time is in actual fact a
taking of such investments without due process and without
payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns
the air lanes. It merely contends that "broadcasting, whether
by radio or by television stations, is licensed by the
government. Airwave frequencies have to be allocated as
there are more individuals who want to broadcast than there
are frequencies to assign. A franchise is thus a privilege
subject among other thing . . . to amendment, alteration or
repeal by the Congress when the common good so requires." 4
True enough, a "franchise started out as a 'royal privilege or
[a] branch of the King's prerogative, subsisting in the hands of
a subject.'" 5
Indeed, while the Constitution expressly provides that "[a]ll
lands of the public domain, waters, mineral, coal, petroleum,
and other mineral oils, all forces, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna, and other
natural resources are owned by the State," it is silent as to the
ownership of the airwaves and frequencies. It is then
reasonable to say that no one owns them. Like the air we
breathe and the sunshine that sustains life, the air lanes
themselves "are not property because they cannot be
appropriated for the benefit of any individual," 6 but are to be
used to the best advantage of all.
Because, as mentioned earlier, there are more prospective
users than frequencies, the State in the exercise of its
police power allocates, supervises and regulates their use,
so as to derive maximum benefit for the general public. The
franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in
the use of the airwaves by assigning to such companies their
respective frequencies. The purpose is not to grant them the

Franchisee's Property Cannot

Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the
majority overlooks the twofold nature and purpose of a
franchise: other than serving the public benefit which is
subject to government regulation, it must also be to the
franchise holder's advantage. Once granted, a franchise (not
the air lanes) together with concomitant private rights,
becomes property of the grantee. 7 It is regarded by law
precisely as other property and, as any other property, it is
safeguarded by the Constitution from arbitrary revocation or
impairment. 8 The rights under a franchise can be neither
taken nor curtailed for public use or purpose, even by the
government as the grantor, without payment of just
compensation 9 as guaranteed under our fundamental law. 10
The fact that the franchise relates to public use or purpose
does not entitle the state to abrogate or impair its use without
just compensation. 11
The majority further claims that, constitutionally, 12 franchises
are always subject to alteration by Congress, "when the
common good so requires." The question then boils down to
this: Does Section 92 of the Omnibus Election Code constitute
a franchise modification for the "common good," or an
"unlawful taking of private property"? To answer this question,
I go back to Philippine Press Institute, Inc. vs. Commission on
Elections, where a unanimous Supreme Court held: 13
To compel print media companies to donate
"Comelec space" of the dimensions specified in
Section 2 of Resolution No. 2772 (not less than onehalf page), amounts to "taking" of private personal
property for public use or purposes. Section 2 failed
to specify the intended frequency of such compulsory
"donation:" only once during the period from 6 March
1995 (or 21 March 1995) until 12 May 1995? or
everyday or once a week? or as often as Comelec
may direct during the same period? The extent of the
taking or deprivation is not insubstantial; this is not a
case of a de minimis temporary limitation or restraint
upon the use of private property. The monetary value
of the compulsory "donation," measured by the
advertising rates ordinarily charged by newspaper
publishers whether in cities or in non-urban areas,
may be very substantial indeed. (Emphasis in
original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no
limit as to the amount and recurrence of the "donation" of air
time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice
of stations, time and frequency of airing, and programs to be
aired. Theoretically, Comelec can compel the use of all the air
time of a station. The fact that Comelec has not exercised its
granted power arbitrarily is immaterial because the law, as
worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it
offends the constitutional principle that a
governmental purpose to control or prevent activities
constitutionally subject to state regulations may not
be achieved by means which sweep unnecessarily
broadly and thereby invade the area of protected
freedoms." (Zwickler v. Koota, 19 L ed 2d 444
[1967]). In a series of decisions this Court has held
that, even though the governmental purpose be
legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental
personal liberties when the end can be more
narrowly achieved. The breadth of legislative
abridgment must be viewed in the light of less

drastic means for achieving the same basic purpose.

14
In a 1968 opinion, the American Supreme Court
made clear that the absence of such reasonable and
definite standards in a legislation of its character is
fatal. Where, as in the case of the above paragraphs,
the majority of the Court could discern "an
overbreadth that makes possible oppressive or
capricious application" of the statutory provisions,
the line dividing the valid from the constitutionally
infirm has been crossed. Such provisions offend the
constitutional principle that "a governmental purpose
to control or prevent activities constitutionally
subject to state regulation may not be achieved by
means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the
governmental purpose be legitimate and substantial,
they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be
more narrowly achieved. For precision of regulation is
the touchstone in an area so closely related to our
most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it
leaves law enforces (in the case, the Comelec) unbridled
discretion in carrying out its provisions and becomes an
arbitrary flexing of the government muscle." 16
Moreover, the extent of the actual taking of air time is
enormous, exorbitant and unreasonable. In their
Memorandum, 17 petitioners allege (and this has not been
rebutted at all) that during the 1992 election period, GMA
Network has been compelled to donate P22,498.560 worth of
advertising revenues; and for the current election period, GMA
stands to lose a staggering P58,980,850. Now, clearly and
most obviously, these amounts are not inconsequential or de
minimis. They constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that
"[l]egislative regulation of public utilities must not have the
effect of depriving an owner of his property without due
process of law, nor of confiscating or appropriating private
property without due process of law, nor of confiscating or
appropriating private property without just compensation, nor
of limiting or prescribing irrevocably vested rights or
privileges lawfully acquired under a charter or franchise." The
power to regulate is subject to these constitutional limits. 18
Consequently, "rights under a franchise cannot be taken or
damaged for a public use without the making of just
compensation therefor." 19 To do so is clearly beyond the
power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument
that the State owns the air lanes and that, by its grant of a
franchise, it should thus receive compensation for the use of
said frequencies. I say, however, that by remitting
unreasonably high "annual fees and charges," which as earlier
stated amounts to millions of pesos yearly, television stations
are in effect paying rental fees for the use (not just the
regulation) of said frequencies. Except for the annual
inspection conducted by the NTC, no other significant service
is performed by the government in exchange for the
enormous fees charged the stations. Evidently, the sums
collected by the NTC exceed the cost of services performed by
it, and are therefore more properly understood as rental fees
for the use of the frequencies granted them. 20
Since the use of the air frequencies is already paid for
annually by the broadcast entities, there is no basis for the
government, through the Comelec, to compel unbridled
donation of the air time of said companies without due
process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to
earlier like oil, minerals and coal once the license to
exploit and develop them is granted to a private corporation,
the government can no longer arbitrarily confiscate or
appropriate them gratis under the guise of serving the
common good. Crude oil, for instance, once explored, drilled,
and refined is thereafter considered the property of the
authorized explorer (or refiner) which can sell it to the public
and even to the government itself. The State simply cannot
demand free gasoline for the operation of public facilities
even if they benefit the people in general. It still has to pay
compensation therefor.
III. Airwaves Useless Without Huge

Investment of Broadcast Companies

Setting up and operating a credible broadcasting network
requires billions of pesos in investments. It is precisely the
broadcast licensee's use of a state-granted franchise or
privilege which occasions its acquisition of private property in
the form of broadcast facilities and its production of air time.
These properties are distinct from its franchise. 21 The 1996
Audited Consolidated Balance Sheet of Petitioner GMA, on file
with the SEC, shows that its "property and equipment," which
it uses in its broadcast function, amount to over one billion
pesos or, to be exact, P1,245,741,487. 22 This does not include
the cost of producing the programs to be broadcast, talent
fees and other aspects of broadcasting. In their Memorandum,
23
petitioners explain that the total cost for GMA to stay on the
air (for television) at present is approximately P136,100 per
hour, which includes electricity, depreciation, repairs and
maintenance, technical facilities, salaries, and so on. The
point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is
their "product," their valuable property which Section 92
forcibly takes from them in massive amounts without payment
of just compensation.
It is too simplistic to say that because the Constitution allows
Congress to alter franchises, ergo, an unbridled taking of
private property may be allowed. If such appropriation were
only, to use the words of PPI vs. Comelec, de minimis or
insignificant say, one hour once or twice a month
perhaps, it can be justified by the promotion of the "common
good." But a taking in the gargantuan amount of over P58
million from Petitioner GMA for the 1998 election season alone
is an actual seizure of its private investment, and not at all a
reasonable "compensation" or "alteration" for the "common
good." Certainly, this partakes of CONFISCATION of private
property.
What makes the taking of air time even more odious is its ex
post facto nature. When the broadcast companies acquired
their franchises and set up their expensive facilities, they
were not informed of the immensity of the donations they are
now compelled to give.
Note should be made, too, of the fact that what Section 92
takes away is air time. Air time is the "finished product" after
a station uses its own broadcast facilities. The frequency is
lust the specific "route" or "channel" by which this medium
reaches the TV sets of the general public. Technically,
therefore, the wholesale alteration by Section 92 of all
broadcast franchise would appear unrelated to the compelled
donations. While the express modification is in the franchise,
what Section 92 really does is that it takes away the end
product of the facilities which were set up through the use of
the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent
Comelec expressly recognizes the need for just compensation.
Thus, Section 2 of its Resolution No. 2983-A states that
"[e]very radio broadcasting and television station operating
under franchise shall grant the Commission, upon payment of
just compensation, at least thirty (30) minutes of prime time
daily to be known as 'Comelec Time' . . ." And yet, even with
such a judicious legal position taken by the very agency
tasked by the Constitution to administer elections, the
majority still insists on an arbitrary seizure of precious
property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise 24 is
no argument for seizing its profits. The State cannot rob the
rich to feed the poor in the guise of promoting the "common
good." Truly, the end never justifies the means.
It cannot be denied that the amount and the extent of the air
time demanded from GMA is huge and exorbitant, amounting,
I repeat, to over P58 million for the 1998 election season
alone. If the air time required from "every radio and television
station" in the country in the magnitude stated in the
aforesaid Comelec Resolution 2983-A is added up and costed,
the total would indeed be staggering in several hundred
million pesos.
Smacking of undisguised discrimination is the fact that in PPI
vs. Comelec, this Court has required payment of print media
ads but, in this case, compels broadcast stations to donate
their end product on a massive scale. The simplistic
distinction given that radio and TV stations are mere
grantees of government franchises while newspaper
companies are not does not justify the grand larceny of
precious air time. This is a violation not only of private
property, but also of the constitutional right to equal
protection itself. The proffered distinction between print and
broadcast media is too insignificant and too flimsy to be a
valid justification for the discrimination. The print and

broadcast media are equal in the sense that both derive their
revenues principally from paid ads. They should thus be
treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly
guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of
property without due process. 25
2. Such property shall not be taken by the government, even
for the use of the general public, without first paying just
compensation to the owner. 26
3. No one, regardless of social or financial status, shall be
denied equal protection of the law. 27
The majority, however, peremptorily brushes aside all these
sacred guarantees and prefers to rely on the nebulous legal
theory that broadcast stations are mere recipients of stategranted franchises which can be altered or withdrawn anytime
or otherwise burdened with post facto elephantine yokes. By
this short-circuited rationalization, the majority blithely
ignores the private entrepreneurs' billion-peso investments
and the broadcast professionals' grit and toil in transforming
these invisible franchises into merchandisable property; and
conveniently forgets the grim reality that the taking of
honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government, 28 against which these
constitutional rights to property were in the first place written,
prudently agrees to respect them and to pay adequate
compensation for their taking. But ironically, the majority
rejects the exemplary observance by the government of the
people's rights and insists on the confiscation of their private
property.
I have always believed that the Supreme Court is the ever
vigilant guardian of the constitutional rights of the citizens
and their ultimate protector against the tyrannies of their own
government. I am afraid that by this unfortunate Decision, the
majority, in this instance, has instead converted this
honorable and majestic Court into the people's unwitting
oppressor.
WHEREFORE, I vote to GRANT the petition and to declare
Section 92 of the Omnibus Election Code UNCONSTITUTIONAL
and VOID.
Purisima, J., dissents.

G.R. No. L-20620 August 15, 1974

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,
vs.
CARMEN M. VDA. DE CASTELLVI, ET AL., defendants-appellees.
Office of the Solicitor General for plaintiff-appellant.
C.A. Mendoza & A. V. Raquiza and Alberto Cacnio & Associates
for defendant-appellees.

ZALDIVAR, J.:p
Appeal from the decision of the Court of First Instance of
Pampanga in its Civil Case No. 1623, an expropriation
proceeding.
Plaintiff-appellant, the Republic of the Philippines, (hereinafter
referred to as the Republic) filed, on June 26, 1959, a
complaint for eminent domain against defendant-appellee,
Carmen M. Vda. de Castellvi, judicial administratrix of the
estate of the late Alfonso de Castellvi (hereinafter referred to
as Castellvi), over a parcel of land situated in the barrio of San
Jose, Floridablanca, Pampanga, described as follows:
A parcel of land, Lot No. 199-B Bureau of
Lands Plan Swo 23666. Bounded on the NE
by Maria Nieves Toledo-Gozun; on the SE by
national road; on the SW by AFP reservation,
and on the NW by AFP reservation.
Containing an area of 759,299 square
meters, more or less, and registered in the
name of Alfonso Castellvi under TCT No.
13631 of the Register of Pampanga ...;

and against defendant-appellee Maria Nieves Toledo Gozun

(hereinafter referred to as Toledo-Gozun over two parcels of
land described as follows:
A parcel of land (Portion Lot Blk-1, Bureau of
Lands Plan Psd, 26254. Bounded on the NE
by Lot 3, on the SE by Lot 3; on the SW by
Lot 1-B, Blk. 2 (equivalent to Lot 199-B Swo
23666; on the NW by AFP military
reservation. Containing an area of 450,273
square meters, more or less and registered
in the name of Maria Nieves Toledo-Gozun
under TCT No. 8708 of the Register of Deeds
of Pampanga. ..., and
A parcel of land (Portion of lot 3, Blk-1,
Bureau of Lands Plan Psd 26254. Bounded
on the NE by Lot No. 3, on the SE by school
lot and national road, on the SW by Lot 1-B
Blk 2 (equivalent to Lot 199-B Swo 23666),
on the NW by Lot 1-B, Blk-1. Containing an
area of 88,772 square meters, more or less,
and registered in the name of Maria Nieves
Toledo Gozun under TCT No. 8708 of the
Register of Deeds of Pampanga, ....
In its complaint, the Republic alleged, among other things,
that the fair market value of the above-mentioned lands,
according to the Committee on Appraisal for the Province of
Pampanga, was not more than P2,000 per hectare, or a total
market value of P259,669.10; and prayed, that the provisional
value of the lands be fixed at P259.669.10, that the court
authorizes plaintiff to take immediate possession of the lands
upon deposit of that amount with the Provincial Treasurer of
Pampanga; that the court appoints three commissioners to
ascertain and report to the court the just compensation for
the property sought to be expropriated, and that the court
issues thereafter a final order of condemnation.
On June 29, 1959 the trial court issued an order fixing the
provisional value of the lands at P259,669.10.
In her "motion to dismiss" filed on July 14, 1959, Castellvi
alleged, among other things, that the land under her
administration, being a residential land, had a fair market
value of P15.00 per square meter, so it had a total market
value of P11,389,485.00; that the Republic, through the
Armed Forces of the Philippines, particularly the Philippine Air
Force, had been, despite repeated demands, illegally
occupying her property since July 1, 1956, thereby preventing
her from using and disposing of it, thus causing her damages
by way of unrealized profits. This defendant prayed that the
complaint be dismissed, or that the Republic be ordered to
pay her P15.00 per square meter, or a total of
P11,389,485.00, plus interest thereon at 6% per annum from
July 1, 1956; that the Republic be ordered to pay her
P5,000,000.00 as unrealized profits, and the costs of the suit.
By order of the trial court, dated August, 1959, Amparo C.
Diaz, Dolores G. viuda de Gil, Paloma Castellvi, Carmen
Castellvi, Rafael Castellvi, Luis Castellvi, Natividad Castellvi de
Raquiza, Jose Castellvi and Consuelo Castellvi were allowed to
intervene as parties defendants. Subsequently, Joaquin V.
Gozun, Jr., husband of defendant Nieves Toledo Gozun, was
also allowed by the court to intervene as a party defendant.
After the Republic had deposited with the Provincial Treasurer
of Pampanga the amount of P259,669.10, the trial court
ordered that the Republic be placed in possession of the
lands. The Republic was actually placed in possession of the
lands on August 10,
1959. 1
In her "motion to dismiss", dated October 22, 1959, ToledoGozun alleged, among other things, that her two parcels of
land were residential lands, in fact a portion with an area of
343,303 square meters had already been subdivided into
different lots for sale to the general public, and the remaining
portion had already been set aside for expansion sites of the
already completed subdivisions; that the fair market value of
said lands was P15.00 per square meter, so they had a total
market value of P8,085,675.00; and she prayed that the
complaint be dismissed, or that she be paid the amount of
P8,085,675.00, plus interest thereon at the rate of 6% per
annum from October 13, 1959, and attorney's fees in the
amount of P50,000.00.
Intervenors Jose Castellvi and Consuelo Castellvi in their
answer, filed on February 11, 1960, and also intervenor
Joaquin Gozun, Jr., husband of defendant Maria Nieves ToledoGozun, in his motion to dismiss, dated May 27, 1960, all
alleged that the value of the lands sought to be expropriated
was at the rate of P15.00 per square meter.

On November 4, 1959, the trial court authorized the Provincial

Treasurer of Pampanga to pay defendant Toledo-Gozun the
sum of P107,609.00 as provisional value of her lands. 2 On
May 16, 1960 the trial Court authorized the Provincial
Treasurer of Pampanga to pay defendant Castellvi the amount
of P151,859.80 as provisional value of the land under her
administration, and ordered said defendant to deposit the
amount with the Philippine National Bank under the
supervision of the Deputy Clerk of Court. In another order of
May 16, 1960 the trial Court entered an order of
condemnation. 3
The trial Court appointed three commissioners: Atty. Amadeo
Yuzon, Clerk of Court, as commissioner for the court; Atty.
Felicisimo G. Pamandanan, counsel of the Philippine National
Bank Branch at Floridablanca, for the plaintiff; and Atty.
Leonardo F. Lansangan, Filipino legal counsel at Clark Air Base,
for the defendants. The Commissioners, after having qualified
themselves, proceeded to the performance of their duties.
On March 15,1961 the Commissioners submitted their report
and recommendation, wherein, after having determined that
the lands sought to be expropriated were residential lands,
they recommended unanimously that the lowest price that
should be paid was P10.00 per square meter, for both the
lands of Castellvi and Toledo-Gozun; that an additional
P5,000.00 be paid to Toledo-Gozun for improvements found
on her land; that legal interest on the compensation,
computed from August 10, 1959, be paid after deducting the
amounts already paid to the owners, and that no
consequential damages be awarded. 4 The Commissioners'
report was objected to by all the parties in the case by
defendants Castellvi and Toledo-Gozun, who insisted that the
fair market value of their lands should be fixed at P15.00 per
square meter; and by the Republic, which insisted that the
price to be paid for the lands should be fixed at P0.20 per
square meter. 5
After the parties-defendants and intervenors had filed their
respective memoranda, and the Republic, after several
extensions of time, had adopted as its memorandum its
objections to the report of the Commissioners, the trial court,
on May 26, 1961, rendered its decision 6 the dispositive
portion of which reads as follows:
WHEREFORE, taking into account all the
foregoing circumstances, and that the lands
are titled, ... the rising trend of land
values ..., and the lowered purchasing
power of the Philippine peso, the court finds
that the unanimous recommendation of the
commissioners of ten (P10.00) pesos per
square meter for the three lots of the
defendants subject of this action is fair and
just.
xxx xxx xxx
The plaintiff will pay 6% interest per annum
on the total value of the lands of defendant
Toledo-Gozun since (sic) the amount
deposited as provisional value from August
10, 1959 until full payment is made to said
defendant or deposit therefor is made in
court.
In respect to the defendant Castellvi,
interest at 6% per annum will also be paid
by the plaintiff to defendant Castellvi from
July 1, 1956 when plaintiff commenced its
illegal possession of the Castellvi land when
the instant action had not yet been
commenced to July 10, 1959 when the
provisional value thereof was actually
deposited in court, on the total value of the
said (Castellvi) land as herein adjudged. The
same rate of interest shall be paid from July
11, 1959 on the total value of the land
herein adjudged minus the amount
deposited as provisional value, or
P151,859.80, such interest to run until full
payment is made to said defendant or
deposit therefor is made in court. All the
intervenors having failed to produce
evidence in support of their respective
interventions, said interventions are ordered
dismissed.
The costs shall be charged to the plaintiff.
On June 21, 1961 the Republic filed a motion for a new trial
and/or reconsideration, upon the grounds of newly-discovered
evidence, that the decision was not supported by the
evidence, and that the decision was against the law, against
which motion defendants Castellvi and Toledo-Gozun filed

their respective oppositions. On July 8, 1961 when the motion

of the Republic for new trial and/or reconsideration was called
for hearing, the Republic filed a supplemental motion for new
trial upon the ground of additional newly-discovered evidence.
This motion for new trial and/or reconsideration was denied by
the court on July 12, 1961.
On July 17, 1961 the Republic gave notice of its intention to
appeal from the decision of May 26, 1961 and the order of July
12, 1961. Defendant Castellvi also filed, on July 17, 1961, her
notice of appeal from the decision of the trial court.
The Republic filed various ex-parte motions for extension of
time within which to file its record on appeal. The Republic's
record on appeal was finally submitted on December 6, 1961.
Defendants Castellvi and Toledo-Gozun filed not only a joint
opposition to the approval of the Republic's record on appeal,
but also a joint memorandum in support of their opposition.
The Republic also filed a memorandum in support of its prayer
for the approval of its record on appeal. On December 27,
1961 the trial court issued an order declaring both the record
on appeal filed by the Republic, and the record on appeal filed
by defendant Castellvi as having been filed out of time,
thereby dismissing both appeals.
On January 11, 1962 the Republic filed a "motion to strike out
the order of December 27, 1961 and for reconsideration", and
subsequently an amended record on appeal, against which
motion the defendants Castellvi and Toledo-Gozun filed their
opposition. On July 26, 1962 the trial court issued an order,
stating that "in the interest of expediency, the questions
raised may be properly and finally determined by the
Supreme Court," and at the same time it ordered the Solicitor
General to submit a record on appeal containing copies of
orders and pleadings specified therein. In an order dated
November 19, 1962, the trial court approved the Republic's
record on appeal as amended.
Defendant Castellvi did not insist on her appeal. Defendant
Toledo-Gozun did not appeal.
The motion to dismiss the Republic's appeal was reiterated by
appellees Castellvi and Toledo-Gozun before this Court, but
this Court denied the motion.
In her motion of August 11, 1964, appellee Castellvi sought to
increase the provisional value of her land. The Republic, in its
comment on Castellvi's motion, opposed the same. This Court
denied Castellvi's motion in a resolution dated October
2,1964.
The motion of appellees, Castellvi and Toledo-Gozun, dated
October 6, 1969, praying that they be authorized to mortgage
the lands subject of expropriation, was denied by this Court or
October 14, 1969.
On February 14, 1972, Attys. Alberto Cacnio, and Associates,
counsel for the estate of the late Don Alfonso de Castellvi in
the expropriation proceedings, filed a notice of attorney's lien,
stating that as per agreement with the administrator of the
estate of Don Alfonso de Castellvi they shall receive by way of
attorney's fees, "the sum equivalent to ten per centum of
whatever the court may finally decide as the expropriated
price of the property subject matter of the case."
--------Before this Court, the Republic contends that the lower court
erred:
1. In finding the price of P10 per square
meter of the lands subject of the instant
proceedings as just compensation;
2. In holding that the "taking" of the
properties under expropriation commenced
with the filing of this action;
3. In ordering plaintiff-appellant to pay 6%
interest on the adjudged value of the
Castellvi property to start from July of 1956;
4. In denying plaintiff-appellant's motion for
new trial based on newly discovered
evidence.
In its brief, the Republic discusses the second error assigned
as the first issue to be considered. We shall follow the
sequence of the Republic's discussion.

1. In support of the assigned error that the lower court erred

in holding that the "taking" of the properties under
expropriation commenced with the filing of the complaint in
this case, the Republic argues that the "taking" should be
reckoned from the year 1947 when by virtue of a special lease
agreement between the Republic and appellee Castellvi, the
former was granted the "right and privilege" to buy the
property should the lessor wish to terminate the lease, and
that in the event of such sale, it was stipulated that the fair
market value should be as of the time of occupancy; and that
the permanent improvements amounting to more that half a
million pesos constructed during a period of twelve years on
the land, subject of expropriation, were indicative of an
agreed pattern of permanency and stability of occupancy by
the Philippine Air Force in the interest of national Security. 7
Appellee Castellvi, on the other hand, maintains that the
"taking" of property under the power of eminent domain
requires two essential elements, to wit: (1) entrance and
occupation by condemn or upon the private property for more
than a momentary or limited period, and (2) devoting it to a
public use in such a way as to oust the owner and deprive him
of all beneficial enjoyment of the property. This appellee
argues that in the instant case the first element is wanting, for
the contract of lease relied upon provides for a lease from
year to year; that the second element is also wanting,
because the Republic was paying the lessor Castellvi a
monthly rental of P445.58; and that the contract of lease does
not grant the Republic the "right and privilege" to buy the
premises "at the value at the time of occupancy." 8
Appellee Toledo-Gozun did not comment on the Republic's
argument in support of the second error assigned, because as
far as she was concerned the Republic had not taken
possession of her lands prior to August 10, 1959. 9
In order to better comprehend the issues raised in the appeal,
in so far as the Castellvi property is concerned, it should be
noted that the Castellvi property had been occupied by the
Philippine Air Force since 1947 under a contract of lease,
typified by the contract marked Exh. 4-Castellvi, the pertinent
portions of which read:
CONTRACT OF LEASE
This AGREEMENT OF LEASE MADE AND
ENTERED into by and between INTESTATE
ESTATE OF ALFONSO DE CASTELLVI,
represented by CARMEN M. DE CASTELLVI,
Judicial Administratrix ... hereinafter called
the LESSOR and THE REPUBLIC OF THE
PHILIPPINES represented by MAJ. GEN.
CALIXTO DUQUE, Chief of Staff of the
ARMED FORCES OF THE PHILIPPINES,
hereinafter called the LESSEE,
WITNESSETH:
1. For and in consideration of the rentals
hereinafter reserved and the mutual terms,
covenants and conditions of the parties, the
LESSOR has, and by these presents does,
lease and let unto the LESSEE the following
described land together with the
improvements thereon and appurtenances
thereof, viz:
Un Terreno, Lote No. 27 del Plano de
subdivision Psu 34752, parte de la hacienda
de Campauit, situado en el Barrio de San
Jose, Municipio de Floridablanca
Pampanga. ... midiendo una extension
superficial de cuatro milliones once mil
cuatro cientos trienta y cinco (4,001,435)
[sic] metros cuadrados, mas o menos.
Out of the above described property, 75.93
hectares thereof are actually occupied and
covered by this contract. .
Above lot is more particularly described in
TCT No. 1016, province of
Pampanga ...
of which premises, the LESSOR warrants that
he/she/they/is/are the registered owner(s) and with full
authority to execute a contract of this nature.
2. The term of this lease shall be for the
period beginning July 1, 1952 the date the
premises were occupied by the PHILIPPINE
AIR FORCE, AFP until June 30, 1953, subject
to renewal for another year at the option of

the LESSEE or unless sooner terminated by

the LESSEE as hereinafter provided.
3. The LESSOR hereby warrants that the
LESSEE shall have quiet, peaceful and
undisturbed possession of the demised
premises throughout the full term or period
of this lease and the LESSOR undertakes
without cost to the LESSEE to eject all
trespassers, but should the LESSOR fail to
do so, the LESSEE at its option may proceed
to do so at the expense of the LESSOR. The
LESSOR further agrees that should
he/she/they sell or encumber all or any part
of the herein described premises during the
period of this lease, any conveyance will be
conditioned on the right of the LESSEE
hereunder.
4. The LESSEE shall pay to the LESSOR as
monthly rentals under this lease the sum of
FOUR HUNDRED FIFTY-FIVE PESOS & 58/100
(P455.58) ...
5. The LESSEE may, at any time prior to the
termination of this lease, use the property
for any purpose or purposes and, at its own
costs and expense make alteration, install
facilities and fixtures and errect additions ...
which facilities or fixtures ... so placed in,
upon or attached to the said premises shall
be and remain property of the LESSEE and
may be removed therefrom by the LESSEE
prior to the termination of this lease. The
LESSEE shall surrender possession of the
premises upon the expiration or termination
of this lease and if so required by the
LESSOR, shall return the premises in
substantially the same condition as that
existing at the time same were first
occupied by the AFP, reasonable and
ordinary wear and tear and damages by the
elements or by circumstances over which
the LESSEE has no control excepted:
PROVIDED, that if the LESSOR so requires
the return of the premises in such condition,
the LESSOR shall give written notice thereof
to the LESSEE at least twenty (20) days
before the termination of the lease and
provided, further, that should the LESSOR
give notice within the time specified above,
the LESSEE shall have the right and
privilege to compensate the LESSOR at the
fair value or the equivalent, in lieu of
performance of its obligation, if any, to
restore the premises. Fair value is to be
determined as the value at the time of
occupancy less fair wear and tear and
depreciation during the period of this lease.
6. The LESSEE may terminate this lease at
any time during the term hereof by giving
written notice to the LESSOR at least thirty
(30) days in advance ...
7. The LESSEE should not be responsible,
except under special legislation for any
damages to the premises by reason of
combat operations, acts of GOD, the
elements or other acts and deeds not due to
the negligence on the part of the LESSEE.
8. This LEASE AGREEMENT supersedes and
voids any and all agreements and
undertakings, oral or written, previously
entered into between the parties covering
the property herein leased, the same having
been merged herein. This AGREEMENT may
not be modified or altered except by
instrument in writing only duly signed by the
parties. 10
It was stipulated by the parties, that "the foregoing contract of
lease (Exh. 4, Castellvi) is 'similar in terms and conditions,
including the date', with the annual contracts entered into
from year to year between defendant Castellvi and the
Republic of the Philippines (p. 17, t.s.n., Vol. III)". 11 It is
undisputed, therefore, that the Republic occupied Castellvi's
land from July 1, 1947, by virtue of the above-mentioned
contract, on a year to year basis (from July 1 of each year to
June 30 of the succeeding year) under the terms and
conditions therein stated.
Before the expiration of the contract of lease on June 30, 1956
the Republic sought to renew the same but Castellvi refused.
When the AFP refused to vacate the leased premises after the

termination of the contract, on July 11, 1956, Castellvi wrote

to the Chief of Staff, AFP, informing the latter that the heirs of
the property had decided not to continue leasing the property
in question because they had decided to subdivide the land
for sale to the general public, demanding that the property be
vacated within 30 days from receipt of the letter, and that the
premises be returned in substantially the same condition as
before occupancy (Exh. 5 Castellvi). A follow-up letter was
sent on January 12, 1957, demanding the delivery and return
of the property within one month from said date (Exh. 6
Castellvi). On January 30, 1957, Lieutenant General Alfonso
Arellano, Chief of Staff, answered the letter of Castellvi, saying
that it was difficult for the army to vacate the premises in
view of the permanent installations and other facilities worth
almost P500,000.00 that were erected and already
established on the property, and that, there being no other
recourse, the acquisition of the property by means of
expropriation proceedings would be recommended to the
President (Exhibit "7" Castellvi).
Defendant Castellvi then brought suit in the Court of First
Instance of Pampanga, in Civil Case No. 1458, to eject the
Philippine Air Force from the land. While this ejectment case
was pending, the Republic instituted these expropriation
proceedings, and, as stated earlier in this opinion, the
Republic was placed in possession of the lands on August 10,
1959, On November 21, 1959, the Court of First Instance of
Pampanga, dismissed Civil Case No. 1458, upon petition of the
parties, in an order which, in part, reads as follows:
1. Plaintiff has agreed, as a matter of fact
has already signed an agreement with
defendants, whereby she has agreed to
receive the rent of the lands, subject matter
of the instant case from June 30, 1966 up to
1959 when the Philippine Air Force was
placed in possession by virtue of an order of
the Court upon depositing the provisional
amount as fixed by the Provincial Appraisal
Committee with the Provincial Treasurer of
Pampanga;
2. That because of the above-cited
agreement wherein the administratrix
decided to get the rent corresponding to the
rent from 1956 up to 1959 and considering
that this action is one of illegal detainer
and/or to recover the possession of said
land by virtue of non-payment of rents, the
instant case now has become moot and
academic and/or by virtue of the agreement
signed by plaintiff, she has waived her
cause of action in the above-entitled case. 12
The Republic urges that the "taking " of Castellvi's property
should be deemed as of the year 1947 by virtue of aforequoted lease agreement. In American Jurisprudence, Vol. 26,
2nd edition, Section 157, on the subject of "Eminent Domain,
we read the definition of "taking" (in eminent domain) as
follows:
Taking' under the power of eminent domain
may be defined generally as entering upon
private property for more than a momentary
period, and, under the warrant or color of
legal authority, devoting it to a public use,
or otherwise informally appropriating or
injuriously affecting it in such a way as
substantially to oust the owner and deprive
him of all beneficial enjoyment thereof. 13
Pursuant to the aforecited authority, a number of
circumstances must be present in the "taking" of property for
purposes of eminent domain.
First, the expropriator must enter a private property. This
circumstance is present in the instant case, when by virtue of
the lease agreement the Republic, through the AFP, took
possession of the property of Castellvi.
Second, the entrance into private property must be for more
than a momentary period. "Momentary" means, "lasting but a
moment; of but a moment's duration" (The Oxford English
Dictionary, Volume VI, page 596); "lasting a very short time;
transitory; having a very brief life; operative or recurring at
every moment" (Webster's Third International Dictionary,
1963 edition.) The word "momentary" when applied to
possession or occupancy of (real) property should be
construed to mean "a limited period" not indefinite or
permanent. The aforecited lease contract was for a period of
one year, renewable from year to year. The entry on the
property, under the lease, is temporary, and considered
transitory. The fact that the Republic, through the AFP,
constructed some installations of a permanent nature does
not alter the fact that the entry into the land was transitory, or
intended to last a year, although renewable from year to year

by consent of 'The owner of the land. By express provision of

the lease agreement the Republic, as lessee, undertook to
return the premises in substantially the same condition as at
the time the property was first occupied by the AFP. It is
claimed that the intention of the lessee was to occupy the
land permanently, as may be inferred from the construction of
permanent improvements. But this "intention" cannot prevail
over the clear and express terms of the lease contract. Intent
is to be deduced from the language employed by the parties,
and the terms 'of the contract, when unambiguous, as in the
instant case, are conclusive in the absence of averment and
proof of mistake or fraud the question being not what the
intention was, but what is expressed in the language used.
(City of Manila v. Rizal Park Co., Inc., 53 Phil. 515, 525);
Magdalena Estate, Inc. v. Myrick, 71 Phil. 344, 348). Moreover,
in order to judge the intention of the contracting parties, their
contemporaneous and subsequent acts shall be principally
considered (Art. 1371, Civil Code). If the intention of the
lessee (Republic) in 1947 was really to occupy permanently
Castellvi's property, why was the contract of lease entered
into on year to year basis? Why was the lease agreement
renewed from year to year? Why did not the Republic
expropriate this land of Castellvi in 1949 when, according to
the Republic itself, it expropriated the other parcels of land
that it occupied at the same time as the Castellvi land, for the
purpose of converting them into a jet air base? 14 It might
really have been the intention of the Republic to expropriate
the lands in question at some future time, but certainly mere
notice - much less an implied notice of such intention on
the part of the Republic to expropriate the lands in the future
did not, and could not, bind the landowner, nor bind the land
itself. The expropriation must be actually commenced in court
(Republic vs. Baylosis, et al., 96 Phil. 461, 484).
Third, the entry into the property should be under warrant or
color of legal authority. This circumstance in the "taking" may
be considered as present in the instant case, because the
Republic entered the Castellvi property as lessee.
Fourth, the property must be devoted to a public use or
otherwise informally appropriated or injuriously affected. It
may be conceded that the circumstance of the property being
devoted to public use is present because the property was
used by the air force of the AFP.
Fifth, the utilization of the property for public use must be in
such a way as to oust the owner and deprive him of all
beneficial enjoyment of the property. In the instant case, the
entry of the Republic into the property and its utilization of the
same for public use did not oust Castellvi and deprive her of
all beneficial enjoyment of the property. Castellvi remained as
owner, and was continuously recognized as owner by the
Republic, as shown by the renewal of the lease contract from
year to year, and by the provision in the lease contract
whereby the Republic undertook to return the property to
Castellvi when the lease was terminated. Neither was
Castellvi deprived of all the beneficial enjoyment of the
property, because the Republic was bound to pay, and had
been paying, Castellvi the agreed monthly rentals until the
time when it filed the complaint for eminent domain on June
26, 1959.
It is clear, therefore, that the "taking" of Catellvi's property for
purposes of eminent domain cannot be considered to have
taken place in 1947 when the Republic commenced to occupy
the property as lessee thereof. We find merit in the contention
of Castellvi that two essential elements in the "taking" of
property under the power of eminent domain, namely: (1) that
the entrance and occupation by the condemnor must be for a
permanent, or indefinite period, and (2) that in devoting the
property to public use the owner was ousted from the
property and deprived of its beneficial use, were not present
when the Republic entered and occupied the Castellvi
property in 1947.
Untenable also is the Republic's contention that although the
contract between the parties was one of lease on a year to
year basis, it was "in reality a more or less permanent right to
occupy the premises under the guise of lease with the 'right
and privilege' to buy the property should the lessor wish to
terminate the lease," and "the right to buy the property is
merged as an integral part of the lease relationship ... so
much so that the fair market value has been agreed upon,
not, as of the time of purchase, but as of the time of
occupancy" 15 We cannot accept the Republic's contention
that a lease on a year to year basis can give rise to a
permanent right to occupy, since by express legal provision a
lease made for a determinate time, as was the lease of
Castellvi's land in the instant case, ceases upon the day fixed,
without need of a demand (Article 1669, Civil Code). Neither
can it be said that the right of eminent domain may be
exercised by simply leasing the premises to be expropriated
(Rule 67, Section 1, Rules of Court). Nor can it be accepted
that the Republic would enter into a contract of lease where
its real intention was to buy, or why the Republic should enter
into a simulated contract of lease ("under the guise of lease",
as expressed by counsel for the Republic) when all the time

the Republic had the right of eminent domain, and could

expropriate Castellvi's land if it wanted to without resorting to
any guise whatsoever. Neither can we see how a right to buy
could be merged in a contract of lease in the absence of any
agreement between the parties to that effect. To sustain the
contention of the Republic is to sanction a practice whereby in
order to secure a low price for a land which the government
intends to expropriate (or would eventually expropriate) it
would first negotiate with the owner of the land to lease the
land (for say ten or twenty years) then expropriate the same
when the lease is about to terminate, then claim that the
"taking" of the property for the purposes of the expropriation
be reckoned as of the date when the Government started to
occupy the property under the lease, and then assert that the
value of the property being expropriated be reckoned as of
the start of the lease, in spite of the fact that the value of the
property, for many good reasons, had in the meantime
increased during the period of the lease. This would be
sanctioning what obviously is a deceptive scheme, which
would have the effect of depriving the owner of the property
of its true and fair market value at the time when the
expropriation proceedings were actually instituted in court.
The Republic's claim that it had the "right and privilege" to
buy the property at the value that it had at the time when it
first occupied the property as lessee nowhere appears in the
lease contract. What was agreed expressly in paragraph No. 5
of the lease agreement was that, should the lessor require the
lessee to return the premises in the same condition as at the
time the same was first occupied by the AFP, the lessee would
have the "right and privilege" (or option) of paying the lessor
what it would fairly cost to put the premises in the same
condition as it was at the commencement of the lease, in lieu
of the lessee's performance of the undertaking to put the land
in said condition. The "fair value" at the time of occupancy,
mentioned in the lease agreement, does not refer to the value
of the property if bought by the lessee, but refers to the cost
of restoring the property in the same condition as of the time
when the lessee took possession of the property. Such fair
value cannot refer to the purchase price, for purchase was
never intended by the parties to the lease contract. It is a rule
in the interpretation of contracts that "However general the
terms of a contract may be, they shall not be understood to
comprehend things that are distinct and cases that are
different from those upon which the parties intended to
agree" (Art. 1372, Civil Code).
We hold, therefore, that the "taking" of the Castellvi property
should not be reckoned as of the year 1947 when the Republic
first occupied the same pursuant to the contract of lease, and
that the just compensation to be paid for the Castellvi
property should not be determined on the basis of the value
of the property as of that year. The lower court did not commit
an error when it held that the "taking" of the property under
expropriation commenced with the filing of the complaint in
this case.
Under Section 4 of Rule 67 of the Rules of Court, 16 the "just
compensation" is to be determined as of the date of the filing
of the complaint. This Court has ruled that when the taking of
the property sought to be expropriated coincides with the
commencement of the expropriation proceedings, or takes
place subsequent to the filing of the complaint for eminent
domain, the just compensation should be determined as of
the date of the filing of the complaint. (Republic vs. Philippine
National Bank, L-14158, April 12, 1961, 1 SCRA 957, 961-962).
In the instant case, it is undisputed that the Republic was
placed in possession of the Castellvi property, by authority of
the court, on August 10, 1959. The "taking" of the Castellvi
property for the purposes of determining the just
compensation to be paid must, therefore, be reckoned as of
June 26, 1959 when the complaint for eminent domain was
filed.
Regarding the two parcels of land of Toledo-Gozun, also
sought to be expropriated, which had never been under lease
to the Republic, the Republic was placed in possession of said
lands, also by authority of the court, on August 10, 1959, The
taking of those lands, therefore, must also be reckoned as of
June 26, 1959, the date of the filing of the complaint for
eminent domain.
2. Regarding the first assigned error discussed as the
second issue the Republic maintains that, even assuming
that the value of the expropriated lands is to be determined
as of June 26, 1959, the price of P10.00 per square meter
fixed by the lower court "is not only exhorbitant but also
unconscionable, and almost fantastic". On the other hand,
both Castellvi and Toledo-Gozun maintain that their lands are
residential lands with a fair market value of not less than
P15.00 per square meter.
The lower court found, and declared, that the lands of
Castellvi and Toledo-Gozun are residential lands. The finding
of the lower court is in consonance with the unanimous
opinion of the three commissioners who, in their report to the
court, declared that the lands are residential lands.

The Republic assails the finding that the lands are residential,
contending that the plans of the appellees to convert the
lands into subdivision for residential purposes were only on
paper, there being no overt acts on the part of the appellees
which indicated that the subdivision project had been
commenced, so that any compensation to be awarded on the
basis of the plans would be speculative. The Republic's
contention is not well taken. We find evidence showing that
the lands in question had ceased to be devoted to the
production of agricultural crops, that they had become
adaptable for residential purposes, and that the appellees had
actually taken steps to convert their lands into residential
subdivisions even before the Republic filed the complaint for
eminent domain. In the case of City of Manila vs. Corrales (32
Phil. 82, 98) this Court laid down basic guidelines in
determining the value of the property expropriated for public
purposes. This Court said:
In determining the value of land
appropriated for public purposes, the same
consideration are to be regarded as in a
sale of property between private parties.
The inquiry, in such cases, must be what is
the property worth in the market, viewed
not merely with reference to the uses to
which it is at the time applied, but with
reference to the uses to which it is plainly
adapted, that is to say, What is it worth from
its availability for valuable uses?
So many and varied are the circumstances
to be taken into account in determining the
value of property condemned for public
purposes, that it is practically impossible to
formulate a rule to govern its appraisement
in all cases. Exceptional circumstances will
modify the most carefully guarded rule, but,
as a general thing, we should say that the
compensation of the owner is to be
estimated by reference to the use for which
the property is suitable, having regard to
the existing business or wants of the
community, or such as may be reasonably
expected in the immediate future. (Miss.
and Rum River Boom Co. vs. Patterson, 98
U.S., 403).
In expropriation proceedings, therefore, the owner of the land
has the right to its value for the use for which it would bring
the most in the market. 17 The owner may thus show every
advantage that his property possesses, present and
prospective, in order that the price it could be sold for in the
market may be satisfactorily determined. 18 The owner may
also show that the property is suitable for division into village
or town lots. 19
The trial court, therefore, correctly considered, among other
circumstances, the proposed subdivision plans of the lands
sought to be expropriated in finding that those lands are
residential lots. This finding of the lower court is supported not
only by the unanimous opinion of the commissioners, as
embodied in their report, but also by the Provincial Appraisal
Committee of the province of Pampanga composed of the
Provincial Treasurer, the Provincial Auditor and the District
Engineer. In the minutes of the meeting of the Provincial
Appraisal Committee, held on May 14, 1959 (Exh. 13Castellvi) We read in its Resolution No. 10 the following:
3. Since 1957 the land has been classified
as residential in view of its proximity to the
air base and due to the fact that it was not
being devoted to agriculture. In fact, there is
a plan to convert it into a subdivision for
residential purposes. The taxes due on the
property have been paid based on its
classification as residential land;
The evidence shows that Castellvi broached the idea of
subdividing her land into residential lots as early as July 11,
1956 in her letter to the Chief of Staff of the Armed Forces of
the Philippines. (Exh. 5-Castellvi) As a matter of fact, the
layout of the subdivision plan was tentatively approved by the
National Planning Commission on September 7, 1956. (Exh. 8Castellvi). The land of Castellvi had not been devoted to
agriculture since 1947 when it was leased to the Philippine
Army. In 1957 said land was classified as residential, and
taxes based on its classification as residential had been paid
since then (Exh. 13-Castellvi). The location of the Castellvi
land justifies its suitability for a residential subdivision. As
found by the trial court, "It is at the left side of the entrance of
the Basa Air Base and bounded on two sides by roads (Exh.
13-Castellvi), paragraphs 1 and 2, Exh. 12-Castellvi), the
poblacion, (of Floridablanca) the municipal building, and the
Pampanga Sugar Mills are closed by. The barrio schoolhouse
and chapel are also near (T.S.N. November 23,1960, p. 68)." 20

The lands of Toledo-Gozun (Lot 1-B and Lot 3) are practically

of the same condition as the land of Castellvi. The lands of
Toledo-Gozun adjoin the land of Castellvi. They are also
contiguous to the Basa Air Base, and are along the road.
These lands are near the barrio schoolhouse, the barrio
chapel, the Pampanga Sugar Mills, and the poblacion of
Floridablanca (Exhs. 1, 3 and 4-Toledo-Gozun). As a matter of
fact, regarding lot 1-B it had already been surveyed and
subdivided, and its conversion into a residential subdivision
was tentatively approved by the National Planning
Commission on July 8, 1959 (Exhs. 5 and 6 Toledo-Gozun). As
early as June, 1958, no less than 32 man connected with the
Philippine Air Force among them commissioned officers, noncommission officers, and enlisted men had requested Mr. and
Mrs. Joaquin D. Gozun to open a subdivision on their lands in
question (Exhs. 8, 8-A to 8-ZZ-Toledo-Gozun). 21
We agree with the findings, and the conclusions, of the lower
court that the lands that are the subject of expropriation in
the present case, as of August 10, 1959 when the same were
taken possession of by the Republic, were residential lands
and were adaptable for use as residential subdivisions.
Indeed, the owners of these lands have the right to their value
for the use for which they would bring the most in the market
at the time the same were taken from them. The most
important issue to be resolved in the present case relates to
the question of what is the just compensation that should be
paid to the appellees.
The Republic asserts that the fair market value of the lands of
the appellees is P.20 per square meter. The Republic cites the
case of Republic vs. Narciso, et al., L-6594, which this Court
decided on May 18, 1956. The Narciso case involved lands
that belonged to Castellvi and Toledo-Gozun, and to one
Donata Montemayor, which were expropriated by the Republic
in 1949 and which are now the site of the Basa Air Base. In
the Narciso case this Court fixed the fair market value at P.20
per square meter. The lands that are sought to be
expropriated in the present case being contiguous to the
lands involved in the Narciso case, it is the stand of the
Republic that the price that should be fixed for the lands now
in question should also be at P.20 per square meter.
We can not sustain the stand of the Republic. We find that the
price of P.20 per square meter, as fixed by this Court in the
Narciso case, was based on the allegation of the defendants
(owners) in their answer to the complaint for eminent domain
in that case that the price of their lands was P2,000.00 per
hectare and that was the price that they asked the court to
pay them. This Court said, then, that the owners of the land
could not be given more than what they had asked,
notwithstanding the recommendation of the majority of the
Commission on Appraisal which was adopted by the trial
court that the fair market value of the lands was P3,000.00
per hectare. We also find that the price of P.20 per square
meter in the Narciso case was considered the fair market
value of the lands as of the year 1949 when the expropriation
proceedings were instituted, and at that time the lands were
classified as sugar lands, and assessed for taxation purposes
at around P400.00 per hectare, or P.04 per square meter. 22
While the lands involved in the present case, like the lands
involved in the Narciso case, might have a fair market value of
P.20 per square meter in 1949, it can not be denied that ten
years later, in 1959, when the present proceedings were
instituted, the value of those lands had increased
considerably. The evidence shows that since 1949 those lands
were no longer cultivated as sugar lands, and in 1959 those
lands were already classified, and assessed for taxation
purposes, as residential lands. In 1959 the land of Castellvi
was assessed at P1.00 per square meter. 23
The Republic also points out that the Provincial Appraisal
Committee of Pampanga, in its resolution No. 5 of February
15, 1957 (Exhibit D), recommended the sum of P.20 per
square meter as the fair valuation of the Castellvi property.
We find that this resolution was made by the Republic the
basis in asking the court to fix the provisional value of the
lands sought to be expropriated at P259,669.10, which was
approved by the court. 24 It must be considered, however, that
the amount fixed as the provisional value of the lands that are
being expropriated does not necessarily represent the true
and correct value of the land. The value is only "provisional"
or "tentative", to serve as the basis for the immediate
occupancy of the property being expropriated by the
condemnor. The records show that this resolution No. 5 was
repealed by the same Provincial Committee on Appraisal in its
resolution No. 10 of May 14, 1959 (Exhibit 13-Castellvi). In
that resolution No. 10, the appraisal committee stated that
"The Committee has observed that the value of the land in
this locality has increased since 1957 ...", and recommended
the price of P1.50 per square meter. It follows, therefore, that,
contrary to the stand of the Republic, that resolution No. 5 of
the Provincial Appraisal Committee can not be made the basis
for fixing the fair market value of the lands of Castellvi and
Toledo-Gozun.

The Republic further relied on the certification of the Acting

Assistant Provincial Assessor of Pampanga, dated February 8,
1961 (Exhibit K), to the effect that in 1950 the lands of ToledoGozun were classified partly as sugar land and partly as urban
land, and that the sugar land was assessed at P.40 per square
meter, while part of the urban land was assessed at P.40 per
square meter and part at P.20 per square meter; and that in
1956 the Castellvi land was classified as sugar land and was
assessed at P450.00 per hectare, or P.045 per square meter.
We can not also consider this certification of the Acting
Assistant Provincial Assessor as a basis for fixing the fair
market value of the lands of Castellvi and Toledo-Gozun
because, as the evidence shows, the lands in question, in
1957, were already classified and assessed for taxation
purposes as residential lands. The certification of the assessor
refers to the year 1950 as far as the lands of Toledo-Gozun are
concerned, and to the year 1956 as far as the land of Castellvi
is concerned. Moreover, this Court has held that the valuation
fixed for the purposes of the assessment of the land for
taxation purposes can not bind the landowner where the latter
did not intervene in fixing it. 25
On the other hand, the Commissioners, appointed by the
court to appraise the lands that were being expropriated,
recommended to the court that the price of P10.00 per square
meter would be the fair market value of the lands. The
commissioners made their recommendation on the basis of
their observation after several ocular inspections of the lands,
of their own personal knowledge of land values in the province
of Pampanga, of the testimonies of the owners of the land,
and other witnesses, and of documentary evidence presented
by the appellees. Both Castellvi and Toledo-Gozun testified
that the fair market value of their respective land was at
P15.00 per square meter. The documentary evidence
considered by the commissioners consisted of deeds of sale of
residential lands in the town of San Fernando and in Angeles
City, in the province of Pampanga, which were sold at prices
ranging from P8.00 to P20.00 per square meter (Exhibits 15,
16, 17, 18, 19, 20, 21, 22, 23-Castellvi). The commissioners
also considered the decision in Civil Case No. 1531 of the
Court of First Instance of Pampanga, entitled Republic vs.
Sabina Tablante, which was expropriation case filed on
January 13, 1959, involving a parcel of land adjacent to the
Clark Air Base in Angeles City, where the court fixed the price
at P18.00 per square meter (Exhibit 14-Castellvi). In their
report, the commissioners, among other things, said:
... This expropriation case is specially
pointed out, because the circumstances and
factors involved therein are similar in many
respects to the defendants' lands in this
case. The land in Civil Case No. 1531 of this
Court and the lands in the present case
(Civil Case No. 1623) are both near the air
bases, the Clark Air Base and the Basa Air
Base respectively. There is a national road
fronting them and are situated in a firstclass municipality. As added advantage it
may be said that the Basa Air Base land is
very near the sugar mill at Del Carmen,
Floridablanca, Pampanga, owned by the
Pampanga Sugar Mills. Also just stone's
throw away from the same lands is a
beautiful vacation spot at Palacol, a sitio of
the town of Floridablanca, which counts with
a natural swimming pool for vacationists on
weekends. These advantages are not found
in the case of the Clark Air Base. The
defendants' lands are nearer to the
poblacion of Floridablanca then Clark Air
Base is nearer (sic) to the poblacion of
Angeles, Pampanga.
The deeds of absolute sale, according to the
undersigned commissioners, as well as the
land in Civil Case No. 1531 are competent
evidence, because they were executed
during the year 1959 and before August 10
of the same year. More specifically so the
land at Clark Air Base which coincidentally is
the subject matter in the complaint in said
Civil Case No. 1531, it having been filed on
January 13, 1959 and the taking of the land
involved therein was ordered by the Court of
First Instance of Pampanga on January 15,
1959, several months before the lands in
this case were taken by the plaintiffs ....
From the above and considering further that
the lowest as well as the highest price per
square meter obtainable in the market of
Pampanga relative to subdivision lots within
its jurisdiction in the year 1959 is very well
known by the Commissioners, the
Commission finds that the lowest price that
can be awarded to the lands in question is
P10.00 per square meter. 26

The lower court did not altogether accept the findings of the
Commissioners based on the documentary evidence, but it
considered the documentary evidence as basis for comparison
in determining land values. The lower court arrived at the
conclusion that "the unanimous recommendation of the
commissioners of ten (P10.00) pesos per square meter for the
three lots of the defendants subject of this action is fair and
just". 27 In arriving at its conclusion, the lower court took into
consideration, among other circumstances, that the lands are
titled, that there is a rising trend of land values, and the
lowered purchasing power of the Philippine peso.
In the case of Manila Railroad Co. vs. Caligsihan, 40 Phil. 326,
328, this Court said:
A court of first instance or, on appeal, the
Supreme Court, may change or modify the
report of the commissioners by increasing or
reducing the amount of the award if the
facts of the case so justify. While great
weight is attached to the report of the
commissioners, yet a court may substitute
therefor its estimate of the value of the
property as gathered from the record in
certain cases, as, where the commissioners
have applied illegal principles to the
evidence submitted to them, or where they
have disregarded a clear preponderance of
evidence, or where the amount allowed is
either palpably inadequate or excessive. 28
The report of the commissioners of appraisal in condemnation
proceedings are not binding, but merely advisory in character,
as far as the court is concerned. 29 In our analysis of the report
of the commissioners, We find points that merit serious
consideration in the determination of the just compensation
that should be paid to Castellvi and Toledo-Gozun for their
lands. It should be noted that the commissioners had made
ocular inspections of the lands and had considered the nature
and similarities of said lands in relation to the lands in other
places in the province of Pampanga, like San Fernando and
Angeles City. We cannot disregard the observations of the
commissioners regarding the circumstances that make the
lands in question suited for residential purposes their
location near the Basa Air Base, just like the lands in Angeles
City that are near the Clark Air Base, and the facilities that
obtain because of their nearness to the big sugar central of
the Pampanga Sugar mills, and to the flourishing first class
town of Floridablanca. It is true that the lands in question are
not in the territory of San Fernando and Angeles City, but,
considering the facilities of modern communications, the town
of Floridablanca may be considered practically adjacent to
San Fernando and Angeles City. It is not out of place,
therefore, to compare the land values in Floridablanca to the
land values in San Fernando and Angeles City, and form an
idea of the value of the lands in Floridablanca with reference
to the land values in those two other communities.
The important factor in expropriation proceeding is that the
owner is awarded the just compensation for his property. We
have carefully studied the record, and the evidence, in this
case, and after considering the circumstances attending the
lands in question We have arrived at the conclusion that the
price of P10.00 per square meter, as recommended by the
commissioners and adopted by the lower court, is quite high.
It is Our considered view that the price of P5.00 per square
meter would be a fair valuation of the lands in question and
would constitute a just compensation to the owners thereof. In
arriving at this conclusion We have particularly taken into
consideration the resolution of the Provincial Committee on
Appraisal of the province of Pampanga informing, among
others, that in the year 1959 the land of Castellvi could be
sold for from P3.00 to P4.00 per square meter, while the land
of Toledo-Gozun could be sold for from P2.50 to P3.00 per
square meter. The Court has weighed all the circumstances
relating to this expropriations proceedings, and in fixing the
price of the lands that are being expropriated the Court
arrived at a happy medium between the price as
recommended by the commissioners and approved by the
court, and the price advocated by the Republic. This Court has
also taken judicial notice of the fact that the value of the
Philippine peso has considerably gone down since the year
1959. 30 Considering that the lands of Castellvi and ToledoGozun are adjoining each other, and are of the same nature,
the Court has deemed it proper to fix the same price for all
these lands.
3. The third issue raised by the Republic
relates to the payment of interest. The
Republic maintains that the lower court
erred when it ordered the Republic to pay
Castellvi interest at the rate of 6% per
annum on the total amount adjudged as the
value of the land of Castellvi, from July 1,
1956 to July 10, 1959. We find merit in this
assignment of error.

In ordering the Republic to pay 6% interest on the total value

of the land of Castellvi from July 1, 1956 to July 10, 1959, the
lower court held that the Republic had illegally possessed the
land of Castellvi from July 1, 1956, after its lease of the land
had expired on June 30, 1956, until August 10, 1959 when the
Republic was placed in possession of the land pursuant to the
writ of possession issued by the court. What really happened
was that the Republic continued to occupy the land of
Castellvi after the expiration of its lease on June 30, 1956, so
much so that Castellvi filed an ejectment case against the
Republic in the Court of First Instance of Pampanga. 31
However, while that ejectment case was pending, the
Republic filed the complaint for eminent domain in the
present case and was placed in possession of the land on
August 10, 1959, and because of the institution of the
expropriation proceedings the ejectment case was later
dismissed. In the order dismissing the ejectment case, the
Court of First Instance of Pampanga said:
Plaintiff has agreed, as a matter of fact has
already signed an agreement with
defendants, whereby she had agreed to
receive the rent of the lands, subject matter
of the instant case from June 30, 1956 up to
1959 when the Philippine Air Force was
placed in possession by virtue of an order of
the Court upon depositing the provisional
amount as fixed by the Provincial Appraisal
Committee with the Provincial Treasurer of
Pampanga; ...
If Castellvi had agreed to receive the rentals from June 30,
1956 to August 10, 1959, she should be considered as having
allowed her land to be leased to the Republic until August 10,
1959, and she could not at the same time be entitled to the
payment of interest during the same period on the amount
awarded her as the just compensation of her land. The
Republic, therefore, should pay Castellvi interest at the rate of
6% per annum on the value of her land, minus the provisional
value that was deposited, only from July 10, 1959 when it
deposited in court the provisional value of the land.
4. The fourth error assigned by the Republic relates to the
denial by the lower court of its motion for a new trial based on
nearly discovered evidence. We do not find merit in this
assignment of error.
After the lower court had decided this case on May 26, 1961,
the Republic filed a motion for a new trial, supplemented by
another motion, both based upon the ground of newly
discovered evidence. The alleged newly discovered evidence
in the motion filed on June 21, 1961 was a deed of absolute
sale-executed on January 25, 1961, showing that a certain
Serafin Francisco had sold to Pablo L. Narciso a parcel of sugar
land having an area of 100,000 square meters with a sugar
quota of 100 piculs, covered by P.A. No. 1701, situated in
Barrio Fortuna, Floridablanca, for P14,000, or P.14 per square
meter.
In the supplemental motion, the alleged newly discovered
evidence were: (1) a deed of sale of some 35,000 square
meters of land situated at Floridablanca for P7,500.00 (or
about P.21 per square meter) executed in July, 1959, by the
spouses Evelyn D. Laird and Cornelio G. Laird in favor of
spouses Bienvenido S. Aguas and Josefina Q. Aguas; and (2) a
deed of absolute sale of a parcel of land having an area of
4,120,101 square meters, including the sugar quota covered
by Plantation Audit No. 161 1345, situated at Floridablanca,
Pampanga, for P860.00 per hectare (a little less than P.09 per
square meter) executed on October 22, 1957 by Jesus Toledo
y Mendoza in favor of the Land Tenure Administration.
We find that the lower court acted correctly when it denied
the motions for a new trial.
To warrant the granting of a new trial based on the ground of
newly discovered evidence, it must appear that the evidence
was discovered after the trial; that even with the exercise of
due diligence, the evidence could not have been discovered
and produced at the trial; and that the evidence is of such a
nature as to alter the result of the case if admitted. 32 The
lower court correctly ruled that these requisites were not
complied with.
The lower court, in a well-reasoned order, found that the sales
made by Serafin Francisco to Pablo Narciso and that made by
Jesus Toledo to the Land Tenure Administration were
immaterial and irrelevant, because those sales covered
sugarlands with sugar quotas, while the lands sought to be
expropriated in the instant case are residential lands. The
lower court also concluded that the land sold by the spouses
Laird to the spouses Aguas was a sugar land.
We agree with the trial court. In eminent domain proceedings,
in order that evidence as to the sale price of other lands may

be admitted in evidence to prove the fair market value of the

land sought to be expropriated, the lands must, among other
things, be shown to be similar.

recently where the land was sold for P0.20

which is contiguous to this land.
The Court gave him permission to submit
said document subject to the approval of
the Court. ... This was before the decision
was rendered, and later promulgated on
May 26, 1961 or more than one month after
Solicitor Padua made the above observation.
He could have, therefore, checked up the
alleged sale and moved for a reopening to
adduce further evidence. He did not do so.
He forgot to present the evidence at a more
propitious time. Now, he seeks to introduce
said evidence under the guise of newlydiscovered evidence. Unfortunately the
Court cannot classify it as newly-discovered
evidence, because tinder the circumstances,
the correct qualification that can be given is
'forgotten evidence'. Forgotten however, is
not newly-discovered
evidence. 33

But even assuming, gratia argumenti, that the lands

mentioned in those deeds of sale were residential, the
evidence would still not warrant the grant of a new trial, for
said evidence could have been discovered and produced at
the trial, and they cannot be considered newly discovered
evidence as contemplated in Section 1(b) of Rule 37 of the
Rules of Court. Regarding this point, the trial court said:
The Court will now show that there was no
reasonable diligence employed.
The land described in the deed of sale
executed by Serafin Francisco, copy of
which is attached to the original motion, is
covered by a Certificate of Title issued by
the Office of the Register of Deeds of
Pampanga. There is no question in the mind
of the court but this document passed
through the Office of the Register of Deeds
for the purpose of transferring the title or
annotating the sale on the certificate of title.
It is true that Fiscal Lagman went to the
Office of the Register of Deeds to check
conveyances which may be presented in the
evidence in this case as it is now sought to
be done by virtue of the motions at bar,
Fiscal Lagman, one of the lawyers of the
plaintiff, did not exercise reasonable
diligence as required by the rules. The
assertion that he only went to the office of
the Register of Deeds 'now and then' to
check the records in that office only shows
the half-hazard [sic] manner by which the
plaintiff looked for evidence to be presented
during the hearing before the
Commissioners, if it is at all true that Fiscal
Lagman did what he is supposed to have
done according to Solicitor Padua. It would
have been the easiest matter for plaintiff to
move for the issuance of a subpoena duces
tecum directing the Register of Deeds of
Pampanga to come to testify and to bring
with him all documents found in his office
pertaining to sales of land in Floridablanca
adjacent to or near the lands in question
executed or recorded from 1958 to the
present. Even this elementary precaution
was not done by plaintiff's numerous
attorneys.
The same can be said of the deeds of sale
attached to the supplementary motion. They
refer to lands covered by certificate of title
issued by the Register of Deeds of
Pampanga. For the same reason they could
have been easily discovered if reasonable
diligence has been exerted by the numerous
lawyers of the plaintiff in this case. It is
noteworthy that all these deeds of sale
could be found in several government
offices, namely, in the Office of the Register
of Deeds of Pampanga, the Office of the
Provincial Assessor of Pampanga, the Office
of the Clerk of Court as a part of notarial
reports of notaries public that acknowledged
these documents, or in the archives of the
National Library. In respect to Annex 'B' of
the supplementary motion copy of the
document could also be found in the Office
of the Land Tenure Administration, another
government entity. Any lawyer with a
modicum of ability handling this
expropriation case would have right away
though [sic] of digging up documents
diligently showing conveyances of lands
near or around the parcels of land sought to
be expropriated in this case in the offices
that would have naturally come to his mind
such as the offices mentioned above, and
had counsel for the movant really exercised
the reasonable diligence required by the
Rule' undoubtedly they would have been
able to find these documents and/or caused
the issuance of subpoena duces tecum. ...
It is also recalled that during the hearing
before the Court of the Report and
Recommendation of the Commissioners and
objection thereto, Solicitor Padua made the
observation:
I understand, Your Honor, that there was a
sale that took place in this place of land

The granting or denial of a motion for new trial is, as a general

rule, discretionary with the trial court, whose judgment should
not be disturbed unless there is a clear showing of abuse of
discretion. 34 We do not see any abuse of discretion on the
part of the lower court when it denied the motions for a new
trial.
WHEREFORE, the decision appealed from is modified, as
follows:
(a) the lands of appellees Carmen Vda. de
Castellvi and Maria Nieves Toledo-Gozun, as
described in the complaint, are declared
expropriated for public use;
(b) the fair market value of the lands of the
appellees is fixed at P5.00 per square
meter;
(c) the Republic must pay appellee Castellvi
the sum of P3,796,495.00 as just
compensation for her one parcel of land that
has an area of 759,299 square meters,
minus the sum of P151,859.80 that she
withdrew out of the amount that was
deposited in court as the provisional value
of the land, with interest at the rate of 6%
per annum from July 10, 1959 until the day
full payment is made or deposited in court;
(d) the Republic must pay appellee ToledoGozun the sum of P2,695,225.00 as the just
compensation for her two parcels of land
that have a total area of 539,045 square
meters, minus the sum of P107,809.00 that
she withdrew out of the amount that was
deposited in court as the provisional value
of her lands, with interest at the rate of 6%,
per annum from July 10, 1959 until the day
full payment is made or deposited in court;
(e) the attorney's lien of Atty. Alberto Cacnio
is enforced; and
(f) the costs should be paid by appellant
Republic of the Philippines, as provided in
Section 12, Rule 67, and in Section 13, Rule
141, of the Rules of Court.
IT IS SO ORDERED.
Makalintal, C.J., Barredo, Antonio, Esguerra, Fernandez, Muoz
Palma and Aquino, JJ., concur.
Castro, Fernando, Teehankee and Makasiar, JJ., took no part.
G.R. No. L-59603

April 29, 1987

EXPORT PROCESSING ZONE AUTHORITY, petitioner,

vs.
HON. CEFERINO E. DULAY, in his capacity as the Presiding
Judge, Court of First Instance of Cebu, Branch XVI, Lapu-Lapu
City, and SAN ANTONIO DEVELOPMENT CORPORATION,
respondents.
Elena M. Cuevas for respondents.
GUTIERREZ, JR., J.:
The question raised in this petition is whether or not
Presidential Decrees Numbered 76, 464, 794 and 1533 have

repealed and superseded Sections 5 to 8 of Rule 67 of the

Revised Rules of Court, such that in determining the just
compensation of property in an expropriation case, the only
basis should be its market value as declared by the owner or
as determined by the assessor, whichever is lower.
On January 15, 1979, the President of the Philippines, issued
Proclamation No. 1811, reserving a certain parcel of land of
the public domain situated in the City of Lapu-Lapu, Island of
Mactan, Cebu and covering a total area of 1,193,669 square
meters, more or less, for the establishment of an export
processing zone by petitioner Export Processing Zone
Authority (EPZA).
Not all the reserved area, however, was public land. The
proclamation included, among others, four (4) parcels of land
with an aggregate area of 22,328 square meters owned and
registered in the name of the private respondent. The
petitioner, therefore, offered to purchase the parcels of land
from the respondent in acccordance with the valuation set
forth in Section 92, Presidential Decree (P.D.) No. 464, as
amended. The parties failed to reach an agreement regarding
the sale of the property.
The petitioner filed with the then Court of First Instance of
Cebu, Branch XVI, Lapu-Lapu City, a complaint for
expropriation with a prayer for the issuance of a writ of
possession against the private respondent, to expropriate the
aforesaid parcels of land pursuant to P.D. No. 66, as amended,
which empowers the petitioner to acquire by condemnation
proceedings any property for the establishment of export
processing zones, in relation to Proclamation No. 1811, for the
purpose of establishing the Mactan Export Processing Zone.
On October 21, 1980, the respondent judge issued a writ of
possession authorizing the petitioner to take immediate
possession of the premises. On December 23, 1980, the
private respondent flied its answer.
At the pre-trial conference on February 13, 1981, the
respondent judge issued an order stating that the parties have
agreed that the only issue to be resolved is the just
compensation for the properties and that the pre-trial is
thereby terminated and the hearing on the merits is set on
April 2, 1981.
On February 17, 1981, the respondent judge issued the order
of condemnation declaring the petitioner as having the lawful
right to take the properties sought to be condemned, upon the
payment of just compensation to be determined as of the
filing of the complaint. The respondent judge also issued a
second order, subject of this petition, appointing certain
persons as commissioners to ascertain and report to the court
the just compensation for the properties sought to be
expropriated.
On June 19, 1981, the three commissioners submitted their
consolidated report recommending the amount of P15.00 per
square meter as the fair and reasonable value of just
compensation for the properties.
On July 29, 1981, the petitioner Med a Motion for
Reconsideration of the order of February 19, 1981 and
Objection to Commissioner's Report on the grounds that P.D.
No. 1533 has superseded Sections 5 to 8 of Rule 67 of the
Rules of Court on the ascertainment of just compensation
through commissioners; and that the compensation must not
exceed the maximum amount set by P.D. No. 1533.
On November 14, 1981, the trial court denied the petitioner's
motion for reconsideration and gave the latter ten (10) days
within which to file its objection to the Commissioner's Report.
On February 9, 1982, the petitioner flied this present petition
for certiorari and mandamus with preliminary restraining
order, enjoining the trial court from enforcing the order dated
February 17, 1981 and from further proceeding with the
hearing of the expropriation case.
The only issue raised in this petition is whether or not Sections
5 to 8, Rule 67 of the Revised Rules of Court had been
repealed or deemed amended by P.D. No. 1533 insofar as the
appointment of commissioners to determine the just
compensation is concerned. Stated in another way, is the
exclusive and mandatory mode of determining just
compensation in P.D. No. 1533 valid and constitutional?
The petitioner maintains that the respondent judge acted in
excess of his jurisdiction and with grave abuse of discretion in
denying the petitioner's motion for reconsideration and in
setting the commissioner's report for hearing because under
P.D. No. 1533, which is the applicable law herein, the basis of
just compensation shall be the fair and current market value
declared by the owner of the property sought to be

expropriated or such market value as determined by the

assessor, whichever is lower. Therefore, there is no more need
to appoint commissioners as prescribed by Rule 67 of the
Revised Rules of Court and for said commissioners to consider
other highly variable factors in order to determine just
compensation. The petitioner further maintains that P.D. No.
1533 has vested on the assessors and the property owners
themselves the power or duty to fix the market value of the
properties and that said property owners are given the full
opportunity to be heard before the Local Board of Assessment
Appeals and the Central Board of Assessment Appeals. Thus,
the vesting on the assessor or the property owner of the right
to determine the just compensation in expropriation
proceedings, with appropriate procedure for appeal to higher
administrative boards, is valid and constitutional.
Prior to the promulgation of P.D. Nos. 76, 464, 794 and 1533,
this Court has interpreted the eminent domain provisions of
the Constitution and established the meaning, under the
fundametal law, of just compensation and who has the power
to determine it. Thus, in the following cases, wherein the filing
of the expropriation proceedings were all commenced prior to
the promulgation of the aforementioned decrees, we laid
down the doctrine onjust compensation:
Municipality of Daet v. Court of Appeals (93 SCRA 503, 516),
xxx

xxx

xxx

"And in the case of J.M. Tuason & Co., Inc. v. Land Tenure
Administration, 31 SCRA 413, the Court, speaking thru now
Chief Justice Fernando, reiterated the 'well-settled (rule) that
just compensation means the equivalent for the value of the
property at the time of its taking. Anything beyond that is
more and anything short of that is less, than just
compensation. It means a fair and full equivalent for the loss
sustained, which is the measure of the indemnity, not
whatever gain would accrue to the expropriating entity."
Garcia v. Court ofappeals (102 SCRA 597, 608),
xxx

xxx

xxx

"Hence, in estimating the market value, all the

capabilities of the property and all the uses to which
it may be applied or for which it is adapted are to be
considered and not merely the condition it is in the
time and the use to which it is then applied by the
owner. All the facts as to the condition of the
property and its surroundings, its improvements and
capabilities may be shown and considered in
estimating its value."
Republic v. Santos (141 SCRA 30, 35-36),
"According to section 8 of Rule 67, the court is not
bound by the commissioners' report. It may make
such order or render such judgment as shall secure
to the plaintiff the property essential to the exercise
of his right of condemnation, and to the defendant
just compensation for the property expropriated. This
Court may substitute its own estimate of the value as
gathered from the record (Manila Railroad Company
v. Velasquez, 32 Phil. 286)."
However, the promulgation of the aforementioned decrees
practically set aside the above and many other precedents
hammered out in the course of evidence-laden, well argued,
fully heard, studiously deliberated, and judiciously considered
court proceedings. The decrees categorically and peremptorily
limited the definition of just compensation thus:
P.D. No. 76:
xxx

xxx

xxx

"For purposes of just compensation in cases of

private property acquired by the government for
public use, the basis shall be the current and fair
market value declared by the owner or administrator,
or such market value as determined by the Assessor,
whichever is lower."
P.D. No. 464:
"Section 92. Basis for payment of just compensation
in expropriation proceedings. In determining just
compensation which private property is acquired by
the government for public use, the basis shall be the
market value declared by the owner or administrator
or anyone having legal interest in the property, or

such market value as determined by the assessor,

whichever is lower."
P.D. No. 794:
"Section 92. Basis for payment of just compensation
in expropriation proceedings. In determining just
compensation when private property is acquired by
the government for public use, the same shall not
exceed the market value declared by the owner or
administrator or anyone having legal interest in the
property, or such market value as determined by the
assessor, whichever is lower."
P.D. No. 1533:
"Section 1. In determining just compensation for
private property acquired through eminent domain
proceedings, the compensation to be paid shall not
exceed the value declared by the owner or
administrator or anyone having legal interest in the
property or determined by the assessor, pursuant to
the Real Property Tax Code, whichever value is lower,
prior to the recommendation or decision of the
appropriate Government office to acquire the
property."
We are constrained to declare the provisions of the Decrees
on just compensation unconstitutional and void and
accordingly dismiss the instant petition for lack of merit.
The method of ascertaining just compensation under the
aforecited decrees constitutes impermissible encroachment
on judicial prerogatives. It tends to render this Court inutile in
a matter which under the Constitution is reserved to it for final
determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the just
compensation for the property, following the applicable
decrees, its task would be relegated to simply stating the
lower value of the property as declared either by the owner or
the assessor. As a necessary consequence, it would be useless
for the court to appoint commissioners under Rule 67 of the
Rules of Court. Moreover, the need to satisfy the due process
clause in the taking of private property is seemingly fulfilled
since it cannot be said that a judicial proceeding was not had
before the actual taking. However, the strict application of the
decrees during the proceedings would be nothing short of a
mere formality or charade as the court has only to choose
between the valuation of the owner and that of the assessor,
and its choice is always limited to the lower of the two. The
court cannot exercise its discretion or independence in
determining what is just or fair. Even a grade school pupil
could substitute for the judge insofar as the determination of
constitutional just compensation is concerned.
In the case of National Housing Authority v. Reyes (123 SCRA
245), this Court upheld P.D. No. 464, as further amended by
P.D. Nos. 794, 1224 and 1259. In this case, the petitioner
National Housing Authority contended that the owner's
declaration at P1,400.00 which happened to be lower than the
assessor's assessment, is the just compensation for the
respondent's property under section 92 of P.D. No. 464. On the
other hand, the private respondent stressed that while there
may be basis for the allegation that the respondent judge did
not follow the decree, the matter is still subject to his final
disposition, he having been vested with the original and
competent authority to exercise his judicial discretion in the
light of the constitutional clauses on due process and equal
protection.
To these opposing arguments, this Court ruled ihat under the
conceded facts, there should be a recognition that the law as
it stands must be applied; that the decree having spoken so
clearly and unequivocably calls for obedience; and that on a
matter where the applicable law speaks in no uncertain
language, the Court has no choice except to yield to its
command. We further stated that "the courts should recognize
that the rule introduced by P.D. No. 76 and reiterated in
subsequent decrees does not upset the established concepts
of justice or the constitutional provision on just compensation
for, precisely, the owner is allowed to make his own valuation
of his property."
While the Court yielded to executive prerogative exercised in
the form of absolute law-making power, its members,
nonetheless, remained uncomfortable with the implications of
the decision and the abuse and unfairness which might follow
in its wake. For one thing, the President himself did not seem
assured or confident with his own enactment. It was not
enough to lay down the law on determination of just
compensation in P.D. 76. It had to be repeated and reiterated
in P.D. 464, P.D. 794, and P.D. 1533. The provision is also
found in P.D. 1224, P.D. 1259 and P.D. 1313. Inspite of its

effectivity as general law and the wide publicity given to it,

the questioned provision or an even stricter version had to be
embodied in cases of specific expropriations by decree as in
P.D. 1669 expropriating the Tambunting Estate and P.D. 1670
expropriating the Sunog Apog area in Tondo, Manila.
In the present petition, we are once again confronted with the
same question of whether the courts under P.D. 1533, which
contains the same provision on just compensation as its
predecessor decrees, still have the power and authority to
determine just compensation, independent of what is stated
by the decree and to this effect, to appoint commissioners for
such purpose.
This time, we answer in the affirmative.
In overruling the petitioner's motion for reconsideration and
objection to the commissioner's report, the trial court said:
"Another consideration why the Court is empowered
to appoint commissioners to assess the just
compensation of these properties under eminent
domain proceedings, is the well-entrenched ruling
that 'the owner of property expropriated is entitled to
recover from expropriating authority the fair and full
value of the lot, as of the time when possession
thereof was actually taken by the province, plus
consequential damages including attorney's fees
from which the consequential benefits, if any
should be deducted, with interest at the legal rate,
on the aggregate sum due to the owner from and
after the date of actual taking.' (Capitol Subdivision,
Inc. v. Province of Negros Occidental, 7 SCRA 60). In
fine, the decree only establishes a uniform basis for
determining just compensation which the Court may
consider as one of the factors in arriving at 'just
compensation,' as envisage in the Constitution. In
the words of Justice Barredo, "Respondent court's
invocation of General Order No. 3 of September 21,
1972 is nothing short of an unwarranted abdication
of judicial authority, which no judge duly imbued with
the implications of the paramount principle of
independence of the judiciary should ever think of
doing." (Lina v. Purisima, 82 SCRA 344, 351; Cf. Prov.
of Pangasinan v. CFI Judge of Pangasinan, Br. VIII, 80
SCRA 117) Indeed, where this Court simply follows
PD 1533, thereby limiting the determination of just
compensation on the value declared by the owner or
administrator or as determined by the Assessor,
whichever is lower, it may result in the deprivation of
the landowner's right of due process to enable it to
prove its claim to just compensation, as mandated by
the Constitution. (Uy v. Genato, 57 SCRA 123). The
tax declaration under the Real Property Tax Code is,
undoubtedly, for purposes of taxation."
We are convinced and so rule that the trial court correctly
stated that the valuation in the decree may only serve as a
guiding principle or one of the factors in determining just
compensation but it may not substitute the court's own
judgment as to what amount should be awarded and how to
arrive at such amount. A return to the earlier well-established
doctrine, to our mind, is more in keeping with the principle
that the judiciary should live up to its mission "by vitalizing
and not denigrating constitutional rights." (See Salonga v.
Cruz Pao, 134 SCRA 438, 462; citing Mercado v. Court of First
Instance of Rizal, 116 SCRA 93.) The doctrine we enunciated
in National Housing Authority v. Reyes, supra, therefore, must
necessarily be abandoned if we are to uphold this Court's role
as the guardian of the fundamental rights guaranteed by the
due process and equal protection clauses and as the final
arbiter over transgressions committed against constitutional
rights.
The basic unfairness of the decrees is readily apparent.
Just compensation means the value of the property at the
time of the taking. It means a fair and full equivalent for the
loss sustained. All the facts as to the condition of the property
and its surroundings, its improvements and capabilities,
should be considered.
In this particular case, the tax declarations presented by the
petitioner as basis for just compensation were made by the
Lapu-Lapu municipal, later city assessor long before martial
law, when land was not only much cheaper but when
assessed values of properties were stated in figures
constituting only a fraction of their true market value. The
private respondent was not even the owner of the properties
at the time. It purchased the lots for development purposes.
To peg the value of the lots on the basis of documents which
are out of date and at prices below the acquisition cost of
present owners would be arbitrary and confiscatory.

Various factors can come into play in the valuation of specific

properties singled out for expropriation. The values given by
provincial assessors are usually uniform for very wide areas
covering several barrios or even an entire town with the
exception of the poblacion. Individual differences are never
taken into account. The value of land is based on such
generalities as its possible cultivation for rice, corn, coconuts,
or other crops. Very often land described as "cogonal" has
been cultivated for generations. Buildings are described in
terms of only two or three classes of building materials and
estimates of areas are more often inaccurate than correct. Tax
values can serve as guides but cannot be absolute substitutes
for just compensation.
To say that the owners are estopped to question the
valuations made by assessors since they had the opportunity
to protest is illusory. The overwhelming mass of land owners
accept unquestioningly what is found in the tax declarations
prepared by local assessors or municipal clerks for them. They
do not even look at, much less analyze, the statements. The
Idea of expropriation simply never occurs until a demand is
made or a case filed by an agency authorized to do so.
It is violative of due process to deny to the owner the
opportunity to prove that the valuation in the tax documents
is unfair or wrong. And it is repulsive to basic concepts of
justice and fairness to allow the haphazard work of a minor
bureaucrat or clerk to absolutely prevail over the judgment of
a court promulgated only after expert commissioners have
actually viewed the property, after evidence and arguments
pro and con have been presented, and after all factors and
considerations essential to a fair and just determination have
been judiciously evaluated.

CORTES, J.:
On December 5, 1977 the National Housing Authority (NIIA)
filed a complaint for expropriation of parcels of land covering
approximately twenty five (25) hectares, (in Antipolo, Rizal)
including the lots of petitioners Lorenzo Sumulong and Emilia
Vidanes-Balaoing with an area of 6,667 square meters and
3,333 square meters respectively. The land sought to be
expropriated were valued by the NHA at one peso (P1.00) per
square meter adopting the market value fixed by the
provincial assessor in accordance with presidential decrees
prescribing the valuation of property in expropriation
proceedings.
Together with the complaint was a motion for immediate
possession of the properties. The NHA deposited the amount
of P158,980.00 with the Philippine National Bank, representing
the "total market value" of the subject twenty five hectares of
land, pursuant to Presidential Decree No. 1224 which defines
"the policy on the expropriation of private property for
socialized housing upon payment of just compensation."
On January 17, 1978, respondent Judge issued the following
Order:
Plaintiff having deposited with the Philippine
National Bank, Heart Center Extension
Office, Diliman, Quezon City, Metro Manila,
the amount of P158,980.00 representing the
total market value of the subject parcels of
land, let a writ of possession be issued.
SO ORDERED.

As was held in the case of Gideon v. Wainwright (93 ALR

2d,733,742):
"In the light of these and many other prior decisions of this
Court, it is not surprising that the Betts Court, when faced
with the contention that 'one charged with crime, who is
unable to obtain counsel must be furnished counsel by the
State,' conceded that '[E]xpressions in the opinions of this
court lend color to the argument. . .' 316 U.S., at 462, 463, 86
L ed. 1602, 62 S Ct. 1252. The fact is that in deciding as it didthat "appointment of counsel is not a fundamental right,
essential to a fair trial" the Court in Betts v. Brady made an
ubrupt brake with its own well-considered precedents. In
returning to these old precedents, sounder we believe than
the new, we but restore constitutional principles established
to achieve a fair system of justice. . ."
We return to older and more sound precedents. This Court has
the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. (See Salonga v. Cruz
Pano, supra).
The determination of "just compensation" in eminent domain
cases is a judicial function. The executive department or the
legislature may make the initial determinations but when a
party claims a violation of the guarantee in the Bill of Rights
that private property may not be taken for public use without
just compensation, no statute, decree, or executive order can
mandate that its own determination shall prevail over the
court's findings. Much less can the courts be precluded from
looking into the "just-ness" of the decreed compensation.
We, therefore, hold that P.D. No. 1533, which eliminates the
court's discretion to appoint commissioners pursuant to Rule
67 of the Rules of Court, is unconstitutional and void. To hold
otherwise would be to undermine the very purpose why this
Court exists in the first place.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is
hereby DISMISSED. The temporary restraining order issued on
February 16, 1982 is LIFTED and SET ASIDE.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Teehankee, C.J., in the result.
Yap, J., on leave.
Petition dismissed. Order lifted and set aside.

Pasig, Metro Manila, January 17, 1978.

(SGD) BU
GUERRER
Judge
Petitioners filed a motion for reconsideration on the ground
that they had been deprived of the possession of their
property without due process of law. This was however,
denied.
Hence, this petition challenging the orders of respondent
Judge and assailing the constitutionality of Pres. Decree No.
1224, as amended. Petitioners argue that:
1) Respondent Judge acted without or in
excess of his jurisdiction or with grave
abuse of discretion by issuing the Order of
January 17, 1978 without notice and without
hearing and in issuing the Order dated June
28, 1978 denying the motion for
reconsideration.
2) Pres. Decree l224, as amended, is
unconstitutional for being violative of the
due process clause, specifically:
a) The Decree would allow
the taking of property
regardless of size and no
matter how small the area
to be expropriated;
b) "Socialized housing" for
the purpose of
condemnation proceeding,
as defined in said Decree,
is not really for a public
purpose;
c) The Decree violates
procedural due process as
it allows immediate taking
of possession, control and
disposition of property
without giving the owner
his day in court;

G.R. No. L-48685 September 30, 1987

LORENZO SUMULONG and EMILIA VIDANES-BALAOING,
petitioners,
vs.
HON. BUENAVENTURA GUERRERO and NATIONAL HOUSING
AUTHORITY, respondents.

d) The Decree would allow

the taking of private
property upon payment of
unjust and unfair
valuations arbitrarily fixed
by government assessors;

e) The Decree would

deprive the courts of their
judicial discretion to
determine what would be
the "just compensation" in
each and every raise of
expropriation.
Indeed, the exercise of the power of eminent domain is
subject to certain limitations imposed by the constitution, to
wit:
Private property shall not be taken for public
use without just compensation (Art. IV, Sec.
9);
No person shall be deprived of life, liberty,
or property without due process of law, nor
shall any person be denied the equal
protection of the laws (Art. IV, sec. 1).
Nevertheless, a clear case of constitutional infirmity has to be
established for this Court to nullify legislative or executive
measures adopted to implement specific constitutional
provisions aimed at promoting the general welfare.
Petitioners' objections to the taking of their property
subsumed under the headings of public use, just
compensation, and due process have to be balanced against
competing interests of the public recognized and sought to be
served under declared policies of the constitution as
implemented by legislation.
1. Public use
a) Socialized Housing
Petitioners contend that "socialized housing" as defined in
Pres. Decree No. 1224, as amended, for the purpose of
condemnation proceedings is not "public use" since it will
benefit only "a handful of people, bereft of public character."
"Socialized housing" is defined as, "the construction of
dwelling units for the middle and lower class members of our
society, including the construction of the supporting
infrastructure and other facilities" (Pres. Decree No. 1224, par.
1). This definition was later expanded to include among
others:
a) The construction and/or improvement of
dwelling units for the middle and lower
income groups of the society, including the
construction of the supporting infrastructure
and other facilities;
b) Slum clearance, relocation and
resettlement of squatters and slum dwellers
as well as the provision of related facilities
and services;
c) Slum improvement which consists
basically of allocating homelots to the
dwellers in the area or property involved,
rearrangemeant and re-alignment of
existing houses and other dwelling
structures and the construction and
provision of basic community facilities and
services, where there are none, such as
roads, footpaths, drainage, sewerage, water
and power system schools, barangay
centers, community centers, clinics, open
spaces, parks, playgrounds and other
recreational facilities;
d) The provision of economic opportunities,
including the development of commercial
and industrial estates and such other
facilities to enhance the total community
growth; and
e) Such other activities undertaken in
pursuance of the objective to provide and
maintain housing for the greatest number of
people under Presidential Decree No, 757,
(Pres. Decree No. 1259, sec. 1)
The "public use" requirement for a and exercise of the power
of eminent domain is a flexible and evolving concept
influenced by changing conditions. In this jurisdiction, the
statutory and judicial trend has been summarized as follows:

The taking to be valid must be for public

use. There was a time when it was felt that
a literal meaning should be attached to such
a requirement. Whatever project is
undertaken must be for the public to enjoy,
as in the case of streets or parks. Otherwise,
expropriation is not allowable. It is not
anymore. As long as the purpose of the
taking is public, then the power of eminent
domain comes into play. As just noted, the
constitution in at least two cases, to remove
any doubt, determines what is public use.
One is the expropriation of lands to be
subdivided into small lots for resale at cost
to individuals. The other is in the transfer,
through the exercise of this power, of
utilities and other private enterprise to the
government. It is accurate to state then that
at present whatever may be beneficially
employed for the general welfare satisfies
the requirement of public use [Heirs of
Juancho Ardona v. Reyes, G.R. Nos. 60549,
60553-60555 October 26, 1983, 125 SCRA
220 (1983) at 234-5 quoting E. FERNANDO,
THE CONSTITUTION OF THE PHILIPPINES
523-4, (2nd ed., 1977) Emphasis supplied].
The term "public use" has acquired a more comprehensive
coverage. To the literal import of the term signifying strict use
or employment by the public has been added the broader
notion of indirect public benefit or advantage. As discussed in
the above cited case of Heirs of Juancho Ardona:
The restrictive view of public use may be
appropriate for a nation which circumscribes
the scope of government activities and
public concerns and which possesses big
and correctly located public lands that
obviate the need to take private property for
public purposes. Neither circumstance
applies to the Philippines. We have never
been a laissez faire State. And the
necessities which impel the exertion of
sovereign power are all too often found in
areas of scarce public land or limited
government resources. (p. 231)
Specifically, urban renewal or redevelopment and the
construction of low-cost housing is recognized as a public
purpose, not only because of the expanded concept of public
use but also because of specific provisions in the Constitution.
The 1973 Constitution made it incumbent upon the State to
establish, maintain and ensure adequate social services
including housing [Art. 11, sec. 7]. The 1987 Constitution goes
even further by providing that:
The State shall promote a just and dynamic
social order that will ensure the prosperity
and independence of the nation and free the
people from poverty through policies that
provide adequate social services, promote
full employment, a rising standard of living
and an improved quality of life for all. [Art.
II, sec. 9]
The state shall by law, and for the common
good, undertake, in cooperation with the
private sector, a continuing program of
urban land reform and housing which will
make available at affordable cost decent
housing and basic services to
underprivileged and homeless citizens in
urban centers and resettlement areas. It
shall also promote adequate employment
opportunities to such citizens. In the
implementation of such program the State
shall respect the rights of small property
owners. (Art. XIII, sec. 9, Emphaisis
supplied)
Housing is a basic human need. Shortage in housing is a
matter of state concern since it directly and significantly
affects public health, safety, the environment and in sum, the
general welfare. The public character of housing measures
does not change because units in housing projects cannot be
occupied by all but only by those who satisfy prescribed
qualifications. A beginning has to be made, for it is not
possible to provide housing for are who need it, all at once.
Population growth, the migration to urban areas and the
mushrooming of crowded makeshift dwellings is a worldwide
development particularly in developing countries. So basic
and urgent are housing problems that the United Nations
General Assembly proclaimed 1987 as the "International Year
of Shelter for the Homeless" "to focus the attention of the
international community on those problems". The General

Assembly is Seriously concerned that, despite the efforts of

Governments at the national and local levels and of
international organizations, the driving conditions of the
majority of the people in slums and squatter areas and rural
settlements, especially in developing countries, continue to
deteriorate in both relative and absolute terms." [G.A. Res.
37/221, Yearbook of the United Nations 1982, Vol. 36, p. 10434]
In the light of the foregoing, this Court is satisfied that
"socialized housing" fans within the confines of "public use". It
is, particularly important to draw attention to paragraph (d) of
Pres. Dec. No. 1224 which opportunities inextricably linked
with low-cost housing, or slum clearance, relocation and
resettlement, or slum improvement emphasize the public
purpose of the project.
In the case at bar, the use to which it is proposed to put the
subject parcels of land meets the requisites of "public use".
The lands in question are being expropriated by the NHA for
the expansion of Bagong Nayon Housing Project to provide
housing facilities to low-salaried government employees.
Quoting respondents:
1. The Bagong Nayong Project is a housing
and community development undertaking of
the National Housing Authority. Phase I
covers about 60 hectares of GSIS property
in Antipolo, Rizal; Phase II includes about 30
hectares for industrial development and the
rest are for residential housing
development.
It is intended for low-salaried government
employees and aims to provide housing and
community services for about 2,000 families
in Phase I and about 4,000 families in Phase
II.
It is situated on rugged terrain 7.5 kms.
from Marikina Town proper; 22 Kms. east of
Manila; and is within the Lungs Silangan
Townsite Reservation (created by
Presidential Proclamation No. 1637 on April
18, 1977).
The lands involved in the present petitions
are parts of the expanded/additional areas
for the Bagong Nayon Project totalling
25.9725 hectares. They likewise include
raw, rolling hills. (Rollo, pp. 266-7)
The acute shortage of housing units in the country is of public
knowledge. Official data indicate that more than one third of
the households nationwide do not own their dwelling places. A
significant number live in dwellings of unacceptable
standards, such as shanties, natural shelters, and structures
intended for commercial, industrial, or agricultural purposes.
Of these unacceptable dwelling units, more than one third is
located within the National Capital Region (NCR) alone which
lies proximate to and is expected to be the most benefited by
the housing project involved in the case at bar [See, National
Census and Statistics Office, 1980 Census of Population and
Housing].
According to the National Economic and Development
Authority at the time of the expropriation in question, about
"50 per cent of urban families, cannot afford adequate shelter
even at reduced rates and will need government support to
provide them with social housing, subsidized either partially or
totally" [NEDA, FOUR YEAR DEVELOPMENT PLAN For 19741977, p. 357]. Up to the present, housing some remains to be
out of the reach of a sizable proportion of the population"
[NEDA, MEDIUM-TERM PHILIPPINE DEVELOPMENT PLAN 19871992, p. 240].
The mushrooming of squatter colonies in the Metropolitan
Manila area as well as in other cities and centers of population
throughout the country, and, the efforts of the government to
initiate housing and other projects are matters of public
knowledge [See NEDA, FOUR YEAR DEVELOPMENT PLAN For
1974-1977, pp. 357-361; NEDA, FIVE-YEAR PHILIPPINE
DEVELOPMENT PLAN 1978-1982, pp. 215-228 NEDA, FIVE
YEAR PHILIPPINE DEVELOPMENT PLAN 1983-1987, pp. 109117; NEDA, MEDIUM TERM PHILIPPINE DEVELOPMENT PLAN
1987-1992, pp. 240-254].
b) Size of Property
Petitioners further contend that Pres. Decree 1224, as
amended, would allow the taking of "any private land"
regardless of the size and no matter how small the area of the
land to be expropriated. Petitioners claim that "there are vast
areas of lands in Mayamot, Cupang, and San Isidro, Antipolo,

Rizal hundred of hectares of which are owned by a few

landowners only. It is surprising [therefore] why respondent
National Housing Authority [would] include [their] two man
lots ..."
In J.M. Tuason Co., Inc. vs. Land Tenure Administration [G. R.
No. L-21064, February 18, 1970, 31 SCRA 413 (1970) at 428]
this Court earlier ruled that expropriation is not confined to
landed estates. This Court, quoting the dissenting opinion of
Justice J.B.L. Reyes in Republic vs. Baylosis, [96 Phil. 461
(1955)], held that:
The propriety of exercising the power of
eminent domain under Article XIII, section 4
of our Constitution cannot be determined on
a purely quantitative or area basis. Not only
does the constitutional provision speak of
lands instead of landed estates, but I see no
cogent reason why the government, in its
quest for social justice and peace, should
exclusively devote attention to conflicts of
large proportions, involving a considerable
number of individuals, and eschew small
controversies and wait until they grow into a
major problem before taking remedial
action.
The said case of J.M. Tuason Co., Inc. departed from the ruling
in Guido vs. Rural Progress Administration [84 Phil. 847
(1949)] which held that the test to be applied for a valid
expropriation of private lands was the area of the land and not
the number of people who stood to be benefited. Since then
"there has evolved a clear pattern of adherence to the
"number of people to be benefited test" " [Mataas na Lupa
Tenants Association, Inc. v. Dimayuga, G.R. No. 32049, June
25,1984, 130 SCRA 30 (1984) at 39]. Thus, in Pulido vs. Court
of Appeals [G.R. No. 57625, May 3, 1983, 122 SCRA 63 (1983)
at 73], this Court stated that, "[i]t is unfortunate that the
petitioner would be deprived of his landholdings, but his
interest and that of his family should not stand in the way of
progress and the benefit of the greater may only of the
inhabitants of the country."
The State acting through the NHA is vested with broad
discretion to designate the particular property/properties to be
taken for socialized housing purposes and how much thereof
may be expropriated. Absent a clear showing of fraud, bad
faith, or gross abuse of discretion, which petitioners herein
failed to demonstrate, the Court will give due weight to and
leave undisturbed the NHA's choice and the size of the site for
the project. The property owner may not interpose objections
merely because in their judgment some other property would
have been more suitable, or just as suitable, for the purpose.
The right to the use, enjoyment and disposal of private
property is tempered by and has to yield to the demands of
the common good. The Constitutional provisions on the
subject are clear:
The State shall promote social justice in all
phases of national development. (Art. II, sec.
10)
The Congress shall give highest priority to
the enactment of measures that protect and
enhance the right of all the people to human
dignity, reduce social, economic, and
political inequalities, and remove cultural
inequities by equitably diffusing wealth and
political power for the common good. To this
end, the State shall regulate the acquisition,
ownership, use and disposition of property
and its increments. (Art, XIII, sec. 1)
Indeed, the foregoing provisions, which are restatements of
the provisions in the 1935 and 1973 Constitutions, emphasize:
...the stewardship concept, under which
private property is supposed to be held by
the individual only as a trustee for the
people in general, who are its real owners.
As a mere steward, the individual must
exercise his rights to the property not for his
own exclusive and selfish benefit but for the
good of the entire community or nation
[Mataas na Lupa Tenants Association, Inc.
supra at 42-3 citing I. CRUZ, PHILIPPINE
POLITICAL LAW, 70 (1983 ed.)].
2. Just Compensation
Petitioners maintain that Pres. Decree No. 1224, as amended,
would allow the taking of private property upon payment of
unjust and unfair valuations arbitrarily fixed by government
assessors. In addition, they assert that the Decree would

deprive the courts of their judicial discretion to determine

what would be "just compensation".

On the matter of the issuance of a writ of possession, the

ruling in the Ignacio case is reiterated, thus:

The foregoing contentions have already been ruled upon by

this Court in the case of Ignacio vs. Guerrero (G.R. No. L49088, May 29, 1987) which, incidentally, arose from the
same expropriation complaint that led to this instant petition.
The provisions on just compensation found in Presidential
Decree Nos. 1224, 1259 and 1313 are the same provisions
found in Presidential Decree Nos. 76, 464, 794 and 1533
which were declared unconstitutional in Export Processing
Zone All thirty vs. Dulay (G.R. No. 5960 April 29, 1987) for
being encroachments on prerogatives.
This Court abandoned the ruling in National Housing Authority
vs. Reyes [G.R. No. 49439, June 29,1983, 123 SCRA 245
(1983)] which upheld Pres. Decree No. 464, as amended by Presidential Decree Nos. 794, 1224 and 1259.
In said case of Export Processing Zone Authority, this Court
pointed out that:
The basic unfairness of the decrees is
readily apparent.
Just compensation means the value of the
property at the time of the taking. It means
a fair and full equivalent for the loss
sustained. ALL the facts as to the condition
of the property and its surroundings, its
improvements and capabilities, should be
considered.

[I]t is imperative that before a writ of

possession is issued by the Court in
expropriation proceedings, the following
requisites must be met: (1) There must be a
Complaint for expropriation sufficient in
form and in substance; (2) A provisional
determination of just compensation for the
properties sought to be expropriated must
be made by the trial court on the basis of
judicial (not legislative or executive)
discretion; and (3) The deposit requirement
under Section 2, Rule 67 must be complied
with. (p. 14)
This Court holds that "socialized housing" defined in Pres.
Decree No. 1224, as amended by Pres. Decree Nos. 1259 and
1313, constitutes "public use" for purposes of expropriation.
However, as previously held by this Court, the provisions of
such decrees on just compensation are unconstitutional; and
in the instant case the Court finds that the Orders issued
pursuant to the corollary provisions of those decrees
authorizing immediate taking without notice and hearing are
violative of due process.
WHEREFORE, the Orders of the lower court dated January 17,
1978 and June 28, 1978 issuing the writ of possession on the
basis of the market value appearing therein are annulled for
having been issued in excess of jurisdiction. Let this case be
remanded to the court of origin for further proceedings to
determine the compensation the petitioners are entitled to be
paid. No costs.

xxx xxx xxx

SO ORDERED.
Various factors can come into play in the
valuation of specific properties singled out
for expropriation. The values given by
provincial assessors are usually uniform for
very wide areas covering several barrios or
even an entire total with the exception of
the poblacion. Individual differences are
never taken into account. The value of land
is based on such generalities as its possible
cultivation for rice, corn, coconuts, or other
crops. Very often land described as
directional has been cultivated for
generations. Buildings are described in
terms of only two or three classes of
building materials and estimates of areas
are more often inaccurate than correct. Tax
values can serve as guides but cannot be
absolute substitutes for just compensation.
To say that the owners are estopped to
question the valuations made by assessors
since they had the opportunity to protest is
illusory. The overwhelming mass of
landowners accept unquestioningly what is
found in the tax declarations prepared by
local assessors or municipal clerks for them.
They do not even look at, much less
analyze, the statements. The Idea of
expropriation simply never occurs until a
demand is made or a case filed by an
agency authorized to do so. (pp. 12-3)
3. Due Process
Petitioners assert that Pres. Decree 1224, as amended,
violates procedural due process as it allows immediate taking
of possession, control and disposition of property without
giving the owner his day in court. Respondent Judge ordered
the issuance of a writ of possession without notice and
without hearing.
The constitutionality of this procedure has also been ruled
upon in the Export Processing Zone Authority case, viz:
It is violative of due process to deny to the
owner the opportunity to prove that the
valuation in the tax documents is unfair or
wrong. And it is repulsive to basic concepts
of justice and fairness to allow the
haphazard work of minor bureaucrat or clerk
to absolutely prevail over the judgment of a
court promulgated only after expert
commissioners have actually viewed the
property, after evidence and arguments pro
and con have been presented, and after all
factors and considerations essential to a fair
and just determination have been
judiciously evaluated. (p. 13)

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera,

Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin
and Sarmiento, JJ., concur.
G.R. No. L-55166 May 2l, 1987
TIONGSON, married to CAYETANO TIONGSON, PACITA L. GO
married to EDUARDO GO, ROBERTO LAPERAL III, MIGUEL
SISON, PHILIP L. MANOTOK, MARIA TERESA L. MANOTOK, JOSE
CLEMENTE MANOTOK, RAMON SEVERINO MANOTOK, JOSE
MARIA MANOTOK and JESUS JUDE MANOTOK, JR., assisted by
their father and judicial guardian, JESUS MANOTOK, MILAGROS
V. MANOTOK, IGNACIO V. MANOTOK, JR., FELISA V. MANOTOK,
MARY-ANN V. MANOTOK, MICHAEL V. MANOTOK, FAUSTO C.
MANOTOK, SEVERINO MANOTOK III, and JESUS MANOTOK,
petitioners,
vs.
NATIONAL HOUSING AUTHORITY and the REPUBLIC OF THE
PHILIPPINES, respondents.
No. L-55167 May 21,1987
PATRICIA L. TIONGSON, PATRICIA L. GO, assisted by her
husband EDWARD GO, ROBERTO LAPERAL III, ELISA R.
MANOTOK, JESUS R. MANOTOK, MIGUEL A. B. SISON,
SEVERINO MANOTOK III, JOSE MARIA MANOTOK and JESUS
MANOTOK, represented herein by their father and judicial
guardian JESUS MANOTOK, JR., IGNACIO R. MANOTOK., and
FAUSTO C. MANOTOK, petitioners,
vs.
NATIONAL HOUSING AUTHORITY and the REPUBLIC OF THE
PHILIPPINES, respondents

GUTIERREZ, JR., J.:

Before us are two petitions. The first one challenges the
constitutionality of Presidential Decree No. 1669 which
provides for the expropriation of the property known as the
"Tambunting Estate" and the second challenges the
constitutionality of Presidential Decree No.1670 which
provides for the expropriation of the property along the Estero
de Sunog-Apog. In both cases, the petitioners maintain that
the two decrees are unconstitutional and should be declared
null and void because:
(1) They deprived the petitioners of their
properties without due process of law.
(2) The petitioners were denied to their right
to just compensation
(3) The petitioners' right to equal protection
of the law was violated.

(4) The decrees are vague, defective, and

patently erroneous.
(5) The petitioners' properties are not proper
subjects for expropriation considering their
location and other relevant circumstances.
On June 11, 1977, the President of the Philippines issued
Letter of Instruction (LOI) No. 555 instituting a nationwide
slum improvement and resettlement program (SIR). On the
same date, the President also issued LOI No. 557, adopting
slum improvement as a national housing policy.
In compliance with LOI No. 555, the Governor of Metro Manila
issued, on July 21, 1977, Executive Order No.6-77 adopting
the Metropolitan Manila Zonal Improvement Program which
included the properties known as the Tambunting Estate and
the Sunog-Apog area in its priority list for a zonal
improvement program (ZIP) because the findings of the
representative of the City of Manila and the National Housing
Authority (NHA) described these as blighted communities.
On March 18, 1978, a fire razed almost the entire Tambunting
Estate. Following this calamity, the President and the Metro
Manila Governor made public announcement that the national
government would acquire the property for the fire victims.
The President also designated the NHA to negotiate with the
owners of the property for the acquisition of the same. This,
however, did not materialize as the negotiations for the
purchase of the property failed.
On December 22, 1978, the President issued Proclamation No.
1810 declaring all sites Identified by the Metro Manila local
governments and approved by the Ministry of Human
Settlements to be included in the ZIP upon proclamation of
the President. The Tambunting Estate and the Sunog-Apog
area were among the sites included.
On January 28, 1980, the President issued the challenged
Presidential Decrees Nos. 1669 and 1670 which respectively
declared the Tambunting Estate and the Sunog-Apog area
expropriated.
Presidential Decree No. 1669, provides, among others:
Section 1. The real properties known as the
"Tambunting Estate" and covered by TCT
Nos. 119059, 122450, 122459, 122452 and
Lots Nos. 1- A, 1-C, 1-D, l-E, 1-F and 1-H of
(LRC) Psd-230517 (Previously covered by
TCT No. 119058) of the Register of Deeds of
Manila with an area of 52,688.70 square
meters, more or less are hereby declared
expropriated. The National Housing
Authority hereinafter referred to as the
"Authority" is designated administrator of
the National Government with authority to
immediately take possession, control,
disposition, with the power of demolition of
the expropriated properties and their
improvements and shall evolve and
implement a comprehensive development
plan for the condemned properties.
xxx xxx xxx
Section 6. Notwithstanding any provision of
law or decree to the contrary and for the
purpose of expropriating this property
pegged at the -.market value determined by
the City Assessor pursuant to Presidential
Decree No. 76, as amended, particularly by
Presidential Decree No. 1533 which is in
force and in effect at the time of the
issuance of this decree. In assessing the
market value, the City Assessor pursuant
consider existing conditions in the area
notably, that no improvement has been
undertaken on the land and that the land is
squatted upon by resident families which
should considerably depress the
expropriation cost. Subject to the foregoing,
the just compensation for the above
property should not exceed a maximum of
SEVENTEEN MILLION PESOS
(Pl7,000,000.00) which shall be payable to
the owners within a period of five (5) years
in five (5) equal installments.
Presidential Decree No. 1670, on the other hand, provides:
Section 1. The real property along the Estero
de Sunog-Apog in Tondo, Manila formerly
consisting of Lots Nos 55-A, 55-B and 55-C,

Block 2918 of the subdivision plan Psd-1

1746, covered by TCT Nos. 49286, 49287
and 49288, respectively, of the Registry of
Deeds of Manila, and formerly owned by the
Manotok Realty, Inc., with an area of
72,428.6 square meters, more or less, is
hereby declared expropriated. The National
Housing Authority hereinafter referred to as
the 'Authority' is designated administrator
of the National Government with authority
to immediately take possession, control and
disposition, with the power of demolition of
the expropriated properties and their
improvements and shall evolve and imagine
implement a comprehensive development
plan for the condemned properties.
xxx xxx xxx
Section 6. Notwithstanding any provision of
law or decree to the contrary and for the
purpose of expropriating this property
pegged at the market value determined by
the City Assessor pursuant to Presidential
Decree No. 76, as amended, particularly by
Presidential Decree No. 1533 which is in
force and in effect at the time of the
issuance of this decree. In assessing the
market value, the City Assessor shall
consider existing conditions in the area
notably, that no improvement has been
undertaken on the land and that the land is
squatted upon by resident families which
should considerably depress the
expropriation cost. Subject to the foregoing,
the just compensation for the above
property should not exceed a maximum of
EIGHT MILLION PESOS (P8,000,000.00),
which shall be payable to the owners within
a period of five (5) years in five equal
installment.
On April 4, 1980, the National Housing Authority, through its
general-manager, wrote the Register of Deeds of Manila,
furnishing it with a certified copy of P.D. Nos. 1669 and 1670
for registration, with the request that the certificates of title
covering the properties in question be cancelled and new
certificates of title be issued in the name of the Republic of
the Philippines.
However, the Register of Deeds in her letter to NHA's generalmanager, requested the submission of the owner's copy of the
certificates of title of the properties in question to enable her
to implement the aforementioned decrees.
Subsequently, petitioner Elisa R. Manotok, one of the owners
of the properties to be expropriated, received from the NHA a
letter informing her that the latter had deposited, on July 16,
1980, with the Philippine National Bank the total amount of
P5,000,000.00 which included the amount of P3,400,000.00
representing the first annual installment for the Tambunting
Estate pursuant to P.D. No. 1669; and another P5,000,000.00
which also included the amount of P1,600,000.00
representing the first annual installment for the Sunog-Apog
area under P.D. No. 1670. The petitioner was also informed
that she was free to withdraw her share in the properties upon
surrender by her of the titles pertaining to said properties and
that if petitioner failed to avail herself of the said offer, the
NHA would be constrained to take the necessary legal steps to
implement the decrees.
On August 19, 1980, petitioner Elisa R. Manotok wrote a letter
to the NHA alleging, inter alia, that the amounts of
compensation for the expropriation of the properties of the
petitioners as fixed in the decrees do not constitute the "just
compensation" envisioned in the Constitution. She expressed
veritable doubts about the constitutionality of the said
decrees and informed the NHA that she did not believe that
she was obliged to withdraw the amount of P5,000,000.00 or
surrender her titles over the properties.
In the meantime, some officials of the NHA circulated
instructions to the tenants-occupants of the properties in
dispute not to pay their rentals to the petitioners for their
lease-occupancy of the properties in view of the passage of
P.D. Nos. 1669 and 1670. Hence, the owners of the
Tambunting Estate filed a petition to declare P.D. No. 1669
unconstitutional. The owners of the Sunog-Apog area also filed
a similar petition attacking the constitutionality of P.D. No.
1670.
On September 27, 1982, the lessees of the Tambunting Estate
and the Sunog-Apog area filed a motion for leave to intervene
together with their petition for intervention alleging that they
are themselves owners of the buildings and houses built on

the properties to be expropriated and as such, they are real

parties-in-interest to the present petitions.
The petitioners maintain that the Presidential Decrees
providing for the direct expropriation of the properties in
question violate their constitutional right to due process and
equal protection of the law because by the mere passage of
the said decrees their properties were automatically
expropriated and they were immediately deprived of the
ownership and possession thereof without being given the
chance to oppose such expropriation or to contest the just
compensation to which they are entitled.
The petitioners argue that the government must first have
filed a complaint with the proper court under Rule 67 of the
Revised Rules of Court in order to fulfill the requirements of
due process. 'They contend that the determination of just
compensation should not have been vested solely with the
City Assessor and that a maximum or fixed amount of
compensation should not have been imposed by the said
decrees. Petitioners likewise state that by providing for the
maximum amount of just compensation and by directing the
City Assessor to take into consideration the alleged existing
conditions of the properties in question, namely: that no
"improvement has been undertaken on the land and that the
land is squatted upon by resident families which should
considerably depress the expropriation costs," the City
Assessor is forced to accept, as actual and existing conditions
of the property, the foregoing statements in the decrees when
in fact the Sunog-Apog area has been subdivided into
subdivision lots and leased to the occupants thereof under
contracts of lease, making them lessees and not squatters as
assumed by Presidential Decree No. 1670. Moreover, each
subdivision lot is surrounded by adobe walls constructed by
the particular owner of the property: the houses were required
to have septic tanks by the City Hall and the, owners
themselves: there is a drainage system; and there are
adequate water facilities.
As far as the Tambunting Estate is concerned, the petitioners
maintain that aside from the residential houses in the area,
there are buildings and structures of strong materials on the
lots fronting Rizal Avenue Extension, most of which are leased
to proprietors of business establishments under long term
contracts of lease which use the same for their furniture
business from which they secure substantial income.
The Government as represented by the Solicitor-General and
the NHA, on the other hand, contends that the power of
eminent domain is inherent in the State and when the
legislature itself or the President through his law-making
prerogatives exercises this power, the public use and public
necessity of the expropriation, and the fixing of the just
compensation become political in nature, and the courts must
respect the decision of the law-making body, unless the
legislative decision is clearly and evidently arbitrary,
unreasonable, and devoid of logic and reason; and that all
that is required is that just compensation be determined with
due process of law which does not necessarily entail judicial
process.
The public respondents, further argue that since the
Constitution lays down no procedure by which the authority to
expropriate may be carried into effect, Rule 67 of the Revised
Rules of Court which is invoked by the petitioners may be said
to have been superseded by the challenged decrees insofar as
they are applicable to the properties in question and,
therefore, there is no need to follow the said rule for due
process to be observed. Moreover, the public respondents
maintain that it cannot be fairly said that the petitioners'
valuations were ignored in fixing the ceiling amount of the
properties in question because the only reason why the
determination appeared unilateral was because said
petitioners did not actually state any valuation in their sworn
declaration of true market value of their respective properties,
and as far as payment in installments is concerned, the same
can be justified by the fact that the properties in question are
only two of the four hundred and fifteen (415) slums and
blighted areas in Metro Manila and two of the two hundred
and fifty one (251) sites for ungrading under the ZIP and that
to immediately acquire and upgrade all those sites would
obviously entail millions and millions of pesos. The financial
constraints, therefore, require a system of payment of just
compensation. Thus, the respondent states that the payment
of just compensation in installments did not arise out of ill will
or the desire to discriminate.
We start with fundamentals.
The power of eminent domain is inherent in every state and
the provisions in the Constitution pertaining to such power
only serve to limit its exercise in order to protect the
individual against whose property the power is sought to be
enforced. We pointed out the constitutional limitations in the
case of Republic vs. Juan (92 SCRA 26, 40):

To begin with, it must be emphasized that

plaintiff-appellee in this instant case is the
Republic of the Philippines which is
exercising its right of eminent domain
inherent in it as a body sovereign. In the
exercise of its sovereign right the State is
not subject to any limitation other than
those imposed by the Constitution which
are: first, the taking must be for a public
use; secondly, the payment of just
compensation must be made: and thirdly,
due process must be observed in the
taking...
The challenged decrees are uniquely unfair in the procedures
adopted and the powers given to the respondent NHA.
The Tambunting subdivision is summarily proclaimed a
blighted area and directly expropriated by decree without the
slightest semblance of a hearing or any proceeding
whatsoever. The expropriation is instant and automatic to take
effect immediately upon the signing of the decree. No deposit
before taking is required under the decree. The P3,400,000.00
appropriated from the general fund is not a deposit but
constitutes an installment payment for the property, the
maximum price of which is fixed so as not to exceed
P17,000,000.00. There is no provision for any interests to be
paid on the unpaid installments spread out over a period of
five years. Not only are the owners given absolutely no
opportunity to contest the expropriation, plead their side, or
question the amount of payments fixed by decree, but the
decisions, rulings, orders, or resolutions of the NHA are
expressly declared as beyond the reach of judicial review. An
appeal may be made to the Office of the President but the
courts are completely enjoined from any inquiry or
participation whatsoever in the expropriation of the
subdivision or its incidents.
In some decisions promulgated before the February, 1986
political upheaval, this Court presumed the validity of the
beautiful "whereases" in presidential decrees governing
expropriations and legitimated takings of private property
which, in normal times, would have been constitutionally
suspect. There were then the avowed twin purposes of martial
law to first quell the Communist rebellion and second to
reform society. Thus, in Haguisan v. Emilia (131 SCRA 517) the
Court sustained the contention that prior hearing is no longer
necessary under P.D. No. 42 in ascertaining the value of the
property to be expropriated and before the government may
take possession. There was a disregard in the decree for
Section 2 of Rule 67 which requires the court having
jurisdiction over the proceedings to promptly ascertain and fix
the provisional value of the property for purposes of the initial
taking or entry by the Government into the premises. In
National Housing Authority v. Reyes (123 SCRA 245) the Court
upheld the decrees which state that the basis for just
compensation shall be the market value declared by the
owner for tax purposes or such market value as determined
by the government assessor, whichever is lower.
Subsequent developments have shown that a disregard for
basic liberties and the shortcut methods embodied in the
decrees on expropriation do not achieve the desired results.
Far from disappearing, squatter colonies and blighted areas
have multiplied and proliferated. It appears that
constitutionally suspect methods or authoritarian procedures
cannot, be the basis for social justice. A program to alleviate
problems of the urban poor which is well studied, adequately
funded, genuinely sincere, and more solidly grounded on basic
rights and democratic procedures is needed.
We re-examine the decisions validating expropriations under
martial law and apply established principles of justice and
fairness which have been with us since the advent of
constitutional government. We return to older and more sound
precedents.
The due process clause cannot be rendered nugatory
everytime a specific decree or law orders the expropriation of
somebody's property and provides its own peculiar manner of
taking the same. Neither should the courts adopt a hands-off
policy just because the public use has been ordained as
existing by the decree or the just compensation has been
fixed and determined beforehand by a statute.
The case of Dohany v. Rogers, (74 L.ed. 904.'912, 281. U.S.
362-370) underscores the extent by which the due process
clause guarantees protection from arbitrary exercise of the
power of eminent domain.
The due process clause does not guarantee
to the citizen of a state any particular form
or method of state procedure. Under it he
may neither claim a right to trial by jury nor
a right of appeal. Its requirements are
satisfied if he has reasonable opportunity to

be heard and to present his claim or

defense, due regard being had to the nature
of the proceeding and the character of the
rights which may be affected by it. Reetz v.
Michigan, 188 U.S. 505, 508, 47 L.ed. 563,
566, 23 Sup. Ct. Rep. 390; Missouri ex rel.
Hurwitz v. North, 271 U.S. 40, 70 L.ed. 818,
46 Sup. Ct. Rep. 384: Bauman v. Ross, 167
U.S. 548, 593, 42 L.ed. 270, 289, 17 Sup. Ct.
Rep. 966; A. Backus Jr. & Sons v. Fort Street
Union Depot Co. 169 U.S. 569, 42 L. ed. 859,
18 Sup. Ct. Rep. 445.

choices or selections. In expropriations through legislation,

there are, at least, debates in Congress open to the public,
scrutiny by individual members of the legislature, and very
often, public hearings before the statute is enacted.
Congressional records can be examined. In these petitions,
the decrees show no reasons whatsoever for the choice of the
properties as housing projects. The anonymous adviser who
drafted the decrees for the President's signature cannot be
questioned as to any possible error or partiality, act of
vengeance, or other personal motivations which may have led
him to propose the direct expropriation with its onerous
provisions.

In other words, although due process does not always

necessarily demand that a proceeding be had before a court
of law, it still mandates some form of proceeding wherein
notice and reasonable opportunity to be heard are given to
the owner to protect his property rights. We agree with the
public respondents that there are exceptional situations when,
in the exercise of the power of eminent domain, the
requirement of due process may not necessarily entail judicial
process. But where it is alleged that in the taking of a person's
property, his right to due process of law has been violated,
the courts will have to step in and probe into such an alleged
violation.

The Tambunting estate or at least the western half of the

subdivision fronting Rizal Avenue Extension is valuable
commercial property. It is located at the junction where three
main city streets converge Rizal Avenue from downtown
Manila, Jose Abad Santos Street from Binondo, and Aurora
Boulevard leading to Retiro Street and other points in Quezon
City. The Libiran Furniture Company, alone, which fronts the
entrance to Jose Abad Santos Street is clearly a multi-million
peso enterprise. It is a foregone conclusion that the favored
squatters allowed to buy these choice lots would lose no time,
once it is possible to do so, to either lease out or sell their lots
to wealthy merchants even as they seek other places where
they can set up new squatter colonies. The public use and
social justice ends stated in the whereas clauses of P.D. 1669
and P.D. 1670 would not be served thereby.

Thus, certain portions of the decision in De Knecht v. Bautista,

(100 SCRA 660, 666-667) state:
There is no question as to the right of the
Republic of the Philippines to take private
property for public use upon the payment of
just compensation. Section 2, Article IV of
the Constitution of the Philippines provides:
'Private property shall not be taken for
public use without just compensation.
It is recognized, however, that the
government may not capriciously or
arbitrarily choose what private property
should be taken. In J.M. Tuazon & Co., Inc. v.
Land tenure Administration, 31 SCRA 413,
433, the Supreme Court said:
xxx xxx xxx
It is obvious then that a land-owner is
covered by the mantle of protection due
process affords. It is a mandate of reason. It
frowns on arbitrariness, it is the antithesis of
any governmental act that smacks of whim
or caprice. It negates state power to act in
an oppressive manner. It is, as had been
stressed so often, the embodiment of the
sporting Idea of fair play. In that sense, it
stands as a guaranty of justice. 'That is the
standard that must be met by any
governmental agency in the exercise of
whatever competence is entrusted to it As
was so emphatically stressed by the present
Chief Justice, 'Acts of Congress, as well as
those of the Executive, can deny due
process only under pain of nullity...
In the same case the Supreme Court concluded:
With due recognition then of the power of
Congress to designate the particular
property to be taken and how much thereof
may be condemned in the exercise of the
power of expropriation, it is still a judicial
question whether in the exercise of such
competence, the party adversely affected is
the victim of partiality and prejudice, That
the equal protection clause will not allow. (p.
436)
The basis for the exercise of the power of eminent domain is
necessity. This Court stated in City of Manila v. Chinese
Community of Manila (40 Phil. 349) that "(t)he very foundation
of the right to exercise eminent domain is a genuine necessity
and that necessity must be of a public character.
In City of Manila v. Arellano Law Colleges (85 Phil. 663), we
reiterated that a necessity must exist for the taking of private
property for the proposed uses and purposes but accepted the
fact that modern decisions do not call for absolute necessity. It
is enough if the condemnor can show a reasonable or
practical necessity, which of course, varies with the time and
peculiar circumstances of each case.
In the instant petitions, there is no showing whatsoever as to
why the properties involved were singled out for expropriation
through decrees or what necessity impelled the particular

The provision of P.D. 1669 which allows NHA, at its sole option,
to put portions of the expropriated area to commercial use in
order to defray the development costs of its housing projects
cannot stand constitutional scrutiny. The Government, for
instance, cannot expropriate the flourishing Makati
commercial area in order to earn money that would finance
housing projects all over the country. The leading case of
Guido v. Rural Progress Administration (84 Phil. 847) may
have been modified in some ways by the provisions of the
new Constitution on agrarian and urban land reform and on
housing. The principle of non-appropriation of private property
for private purposes, however, remains. The legislature,
according to the Guido case, may not take the property of one
citizen and transfer it to another, even for a full
compensation, when the public interest is not thereby
promoted. The Government still has to prove that
expropriation of commercial properties in order to lease them
out also for commercial purposes would be "public use" under
the Constitution.
P.D. No. 1670 suffers from a similar infirmity. There is no
showing how the President arrived at the conclusion that the
Sunog-Apog area is a blighted community. The many pictures
submitted as exhibits by the petitioners show a welldeveloped area subdivided into residential lots with either
middle-income or upper class homes. There are no squatters.
The provisions of the decree on the relocation of qualified
squatter families and on the re-blocking and re-alignment of
existing structures to allow the introduction of basic facilities
and services have no basis in fact The area is well-developed
with roads, drainage and sewer facilities, water connection to
the Metropolitan Waterworks and Sewerage System electric
connections to Manila Electric Company, and telephone
connections to the Philippine Long Distance Telephone
Company. There are many squatter colonies in Metro Manila in
need of upgrading. The Government should have attended to
them first. There is no showing for a need to demolish the
existing valuable improvements in order to upgrade SunogApog.
After a careful examination of the questioned decrees, we find
P.D. Nos. 1669 and 1670 to be violative of the petitioners'
right to due process of law and, therefore, they must fail the
test of constitutionality.
The decrees, do not by themselves, provide for any form of
hearing or procedure by which the petitioners can question
the propriety of the expropriation of their properties or the
reasonableness of the just compensation. Having failed to
provide for a hearing, the Government should have filed an
expropriation case under Rule 67 of the Revised Rules of Court
but it did not do so. Obviously, it did not deem it necessary
because of the enactment of the questioned decrees which
rendered, by their very passage, any questions with regard to
the expropriation of the properties, moot and academic. In
effect, the properties, under the decrees were "automatically
expropriated." This became more evident when the NHA wrote
the Register of Deeds and requested her to cancel the
certificate of titles of the petitioners, furnishing said Register
of Deeds only with copies of the decrees to support its
request.
This is hardly the due process of law which the state is
expected to observe when it exercises the power of eminent
domain.

The government states that there is no arbitrary

determination of the fair market value of the property by the
government assessors because if the owner is not satisfied
with the assessor's action, he may within sixty (60) days
appeal to the Board of Assessment Appeals of the province or
city as the case may be and if said owner is still unsatisfied,
he may appeal further to the Central Board of Assessment
Appeals pursuant to P.D. No. 464. The Government argues
that with this procedure, the due process requirement is
fulfilled.
We cannot sustain this argument.
Presidential Decree No. 464, as amended, otherwise known as
the Real Property Tax Code, provides for the procedure on how
to contest assessments but does not deal with questions as to
the propriety of the expropriation and the manner of payment
of just compensation in the exercise of the power of eminent
domain. We find this wholly unsatisfactory. It cannot in
anyway substitute for the expropriation proceeding under Rule
67 of the Revised Rules of Court.
Another infirmity from which the questioned decrees suffer is
the determination of just compensation.
Pursuant to P.D. 1533, the basis of the just compensation is
the market value of the property "prior to the
recommendation or decision of the appropriate Government
Office to acquire the property." (see also Republic v. Santos, (1
41 SCRA 30, 35).
In these petitions, a maximum amount of compensation was
imposed by the decrees and these amounts were only a little
more than the assessed value of the properties in 1978 when,
according to the government, it decided to acquire said
properties.
The fixing of the maximum amounts of compensation and the
bases thereof which are the assessed values of the properties
in 1978 deprive the petitioner of the opportunity to prove a
higher value because, the actual or symbolic taking of such
properties occurred only in 1980 when the questioned decrees
were promulgated.
According to the government, the cut-off year must be 1978
because it was in this year that the government decided to
acquire the properties and in the case of the Tambunting
Estate, the President even made a public announcement that
the government shall acquire the estate for the fire victims.
The decision of the government to acquire a property through
eminent domain should be made known to the property owner
through a formal notice wherein a hearing or a judicial
proceeding is contemplated as provided for in Rule 67 of the
Rules of Court. This shall be the time of reckoning the value of
the property for the purpose of just compensation. A
television or news announcement or the mere fact of the
property's inclusion in the Zonal Improvement Program (ZIP)
cannot suffice because for the compensation to be just, it
must approximate the value of the property at the time of its
taking and the government can be said to have decided to
acquire or take the property only after it has, at the least,
commenced a proceeding, judicial or otherwise, for this
purpose.
In the following cases, we have upheld the determination of
just compensation and the rationale behind it either at the
time of the actual taking of the government or at the time of
the judgment by the court, whichever came first.
Municipality of Daet v. Court of Appeals, (93 SCRA 503, 506,
519):
...And in the case of J.M. Tuason & Co., Inc. v.
Land Tenure Administration, 31 SCRA 413,
the Court, speaking thru now Chief Justice
Fernando, reiterated the 'wen-settled (rule)
that just compensation means the
equivalent for the value of the property at
the time of its taking. Anything beyond that
is more and anything short of that is less,
than just compensation. It means a fair and
full equivalent for the loss sustained, which
is the measure of the indemnity, not
whatever gain would accrue to the
expropriating entity.
xxx xxx xxx
We hold that the decision of the Court of
Appeals fixing the market value of the
property to be that obtaining, at least, as of
the date of the rendition of the judgment on

December 2, 1969 as prayed by private

respondent, which the Court fixed at
P200.00 per square meter is in conformity
with doctrinal rulings hereinabove cited that
the value should be fixed as of the time of
the taking of the possession of the property
because firstly, at the time judgment was
rendered on December 2, 1969, petitioner
had not actually taken possession of the
property sought to be expropriated and
secondly, We find the valuation determined
by the Court of Appeals to be just, fair and
reasonable.
National Power Corporation v. Court of Appeals, (1 29 SCRA
665, 673):
xxx xxx xxx
(5) And most importantly,on the issue of just
compensation, it is now settled doctrine,
following the leading case of Alfonso v.
Pasay City, (1,06 PhiL 1017 (1960)), that no
determine due compensation for lands
appropriated by the Government, the basis
should be the price or value at the time it
was taken from the owner and appropriated
by the Government.
The owner of property expropriated by the
State is entitled to how much it was worth at
the time of the taking. This has been
clarified in Republic v. PNB (1 SCRA 957)
thus: 'It is apparent from the foregoing that,
when plaintiff takes possession before the
institution of the condemnation
proceedings, the value should be fixed as of
the time of the taking of said possession,
not of filing of the complainant, and that the
latter should be the basis for the
determination of the value, when the of the
property involved coincides with or is
subsequent to, the commencement of the
proceedings. Indeed, otherwise, the
provision of Rule 619, section 3, directing
that compensation "be determined as of the
date of the filing of the complaints" would
never be operative. municipality of La
Carlota v. The Spouses Baltazar, et al., 45
SCRA 235 (1972)).
Furthermore, the so-called "conditions" of the properties
should not be determined through a decree but must be
shown in an appropriate proceeding in order to arrive at a just
valuation of the property. In the case of Garcia v. Court of
Appeals, (102 SCRA 597, 608) we ruled:
...Hence, in estimating the market value, all
the capabilities of the property and all the
uses to which it may be applied or for which
it is adapted are to be considered and not
merely the condition it is in at the time and
the use to which it is then applied by the
owner. All the facts as to the condition of the
property and its surroundings, its
improvements and capabilities may be
shown and considered in estimating its
value.
In P.D. No. 76, P.D. No. 464, P.D. No. 794, and P.D. No. 1533,
the basis for determining just compensation was fixed at the
market value declared by the owner or the market value
determined by the assessor, whichever is lower.
P.D.s 1669 and 1670 go further. There is no mention of any
market value declared by the owner. Sections 6 of the two
decrees peg just compensation at the market value
determined by the City Assessor. The City Assessor is warned
by the decrees to "consider existing conditions in the area
notably, that no improvement has been undertaken on the
land and that the land is squatted upon by resident families
which should considerably depress the expropriation costs."
In other cases involving expropriations under P.D. Nos. 76,
464, 794, and 1533, this Court has decided to invalidate the
mode of fixing just compensation under said decrees. (See
Export Processing Zone Authority v. Hon. Ceferino E. Dulay, et
al. G.R. No. 59603) With more reason should the method in
P.D.s 1669 and 1670 be declared infirm.
The market value stated by the city assessor alone cannot
substitute for the court's judgment in expropriation
proceedings. It is violative of the due process and the eminent
domain provisions of the Constitution to deny to a property
owner the opportunity to prove that the valuation made by a

local assessor is wrong or prejudiced. The statements made in

tax documents by the assessor may serve as one of the
factors to be considered but they cannot exclude or prevail
over a court determination made after expert commissioners
have examined the property and all pertinent circumstances
are taken into account and after the parties have had the
opportunity to fully plead their cases before a competent and
unbiased tribunal. To enjoin this Court by decree from looking
into alleged violations of the due process, equal protection,
and eminent domain clauses of the Constitution is
impermissible encroachment on its independence and
prerogatives.
The maximum amounts, therefore, which were provided for in
the questioned decrees cannot adequately reflect the value of
the property and, in any case, should not be binding on the
property owners for, as stated in the above cases, there are
other factors to be taken into consideration. We, thus, find the
questioned decrees to likewise transgress the petitioners'
right to just compensation. Having violated the due process
and just compensation guarantees, P. D. Nos. 1669 and 1670
are unconstitutional and void.
WHEREFORE, the petitions in G.R. No. 55166 and G.R. No.
55167 are hereby GRANTED. Presidential Decree Numbers
1669 and 1670 which respectively proclaimed the Tambunting
Estate and the Estero de Sunog-Apog area expropriated, are
declared unconstitutional and, therefore, null and void ab
initio.
SO ORDERED.
Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento and Cortes, JJ., concur.
Yap, J., is on leave.

Separate Opinions

TEEHANKEE, C.J., concurring:

The judgment of the Court invalidates Presidential Decrees
numbered 1669 and 1670 which unilaterally proclaimed the
Tambunting Estate and the Estero de Sunog-Apog area as
expropriated without further recourse, for being violative of
the due process and eminent domain provisions of the
Constitution in the particulars stated in the opinion ably
penned by Mr. Justice Gutierrez.
This is in line with my concurring and dissenting opinion in the
six-to-five decision in J.M. Tuason & Co., Inc. v. Land Tenure
Administration 1 wherein the Congress through Republic Act
No. 2616 "authorized the expropriation of the Tatalon Estate"
comprising about 109 hectares in Quezon City for subdivision
into small lots and conveyed at cost to individuals.
I concurred with the tenuous majority's ruling there setting
aside the lower court's ruling granting therein petitioner
appellee's petition to prohibit respondents-appellees from
instituting proceedings for expropriation of the "Tatalon
Estate" as specifically authorized by R.A. 2616, with the result
that the expropriation proceedings could then be properly
filed but subject to such proper and valid objections and
defenses to the action as petitioner-owner may raise.
I dissented, however, from the majority ruling, insofar as it
held that the constitutional power of Congress for the
expropriation of lands is well-nigh all embracing and
forecloses the courts from inquiring into the necessity for the
taking of the property. I noted that "this is the first case where
Congress has singled out a particular property for
condemnation under the constitutional power conferred upon
it. Does this square with the due process and equal protection
clauses of the Constitution? Is the explanatory note of the bill
later enacted as Republic Act 2616, without any evidence as
to a hearing with the affected parties having been given the
opportunity to be heard, and citing merely the population
increase of Quezon City and the land-for-the-landless program
sufficient compliance with these basic constitutional
guarantees? Rather, does not the need for a more serious
scrutiny as to the power of Congress to single out a particular
piece of property for expropriation, acknowledged in the main
opinion, call for judicial scrutiny, with all the acts in, as to the
need for the expropriation for full opportunity to dispute the
legislative appraisal of the matter?" 2

I added that there were prejudicial questions raised which

could only be threshed out in trial court proceedings, (and not
in the special civil action filed with the Court to set aside the
trial court's declaring of unconstitutionality of the questioned
Expropriation Act), viz., with therein petitioner maintaining
that only 11.68% or less than 39 hectares of its Sta. Mesa
Heights Subdivision (of which the "Tatalon Estate" formed
part) remained unsold; that existing contractual rights
acquired by vendors and purchasers of subdivided lots should
be accorded the appropriate constitutional protection of non
impairment; and that in view of the cardinal principle of
eminent domain for payment of just compensation of the
market value of the land "respondents may well consider that
the objectives of the Act may be accomplished more
expeditiously by a direct purchase of the available unsold lots
for resale at cost to the remaining bona fide occupants in
accordance with the Act's provisions or by extending financial
assistance to enable them to purchase directly the unsold lots
from petitioner. I do not see anything to be gained by
respondents from the institution of expropriation proceedings,
when petitioner-owner is actually selling the property in
subdivided lots." 3
The judgment at bar now clearly overturns the majority ruling
in Tuason that "the power of Congress to designate the
particular property to be taken and how much thereof may be
condemned in the exercise of the power of "expropriation"
must be duly recognized, leaving only as "a judicial question
whether in the exercise of such competence, the party
adversely affected is the victim of partiality and prejudice.
That the equal protection clause will not allow." 4 The Court
now clearly rules that such singling out of properties to be
expropriated by Presidential Decree as in the case at bar, or
by act of the legislature as in Tuason, does not foreclose
judicial scrutiny and determination as to whether such
expropriation by legislative act transgresses the due process
and equal protection, 5 and just compensation 6 guarantees of
the Constitution. As we hold now expressly in consonance with
my above-quoted separate opinion in Tuason: "To enjoin this
Court by decree from looking into alleged violations of the due
process, equal protection, and eminent domain clauses of the
Constitution is impermissible encroachment on its
independence and prerogatives." 7 As in all eminent domain
proceedings, the State may not capriciously or arbitrarily
single-out specific property for condemnation and must show
the necessity of the taking for public use.

Separate Opinions
TEEHANKEE, C.J., concurring:
The judgment of the Court invalidates Presidential Decrees
numbered 1669 and 1670 which unilaterally proclaimed the
Tambunting Estate and the Estero de Sunog-Apog area as
expropriated without further recourse, for being violative of
the due process and eminent domain provisions of the
Constitution in the particulars stated in the opinion ably
penned by Mr. Justice Gutierrez.
This is in line with my concurring and dissenting opinion in the
six-to-five decision in J.M. Tuason & Co., Inc. v. Land Tenure
Administration 1 wherein the Congress through Republic Act
No. 2616 "authorized the expropriation of the Tatalon Estate"
comprising about 109 hectares in Quezon City for subdivision
into small lots and conveyed at cost to individuals.
I concurred with the tenuous majority's ruling there setting
aside the lower court's ruling granting therein petitioner
appellee's petition to prohibit respondents-appellees from
instituting proceedings for expropriation of the "Tatalon
Estate" as specifically authorized by R.A. 2616, with the result
that the expropriation proceedings could then be properly
filed but subject to such proper and valid objections and
defenses to the action as petitioner-owner may raise.
I dissented, however, from the majority ruling, insofar as it
held that the constitutional power of Congress for the
expropriation of lands is well-nigh all embracing and
forecloses the courts from inquiring into the necessity for the
taking of the property. I noted that "this is the first case where
Congress has singled out a particular property for
condemnation under the constitutional power conferred upon
it. Does this square with the due process and equal protection
clauses of the Constitution? Is the explanatory note of the bill
later enacted as Republic Act 2616, without any evidence as
to a hearing with the affected parties having been given the
opportunity to be heard, and citing merely the population
increase of Quezon City and the land-for-the-landless program
sufficient compliance with these basic constitutional
guarantees? Rather, does not the need for a more serious
scrutiny as to the power of Congress to single out a particular
piece of property for expropriation, acknowledged in the main
opinion, call for judicial scrutiny, with all the acts in, as to the

need for the expropriation for full opportunity to dispute the

legislative appraisal of the matter?" 2

II. That there is no necessity for the proposed

expropriation.

I added that there were prejudicial questions raised which

could only be threshed out in trial court proceedings, (and not
in the special civil action filed with the Court to set aside the
trial court's declaring of unconstitutionality of the questioned
Expropriation Act), viz., with therein petitioner maintaining
that only 11.68% or less than 39 hectares of its Sta. Mesa
Heights Subdivision (of which the "Tatalon Estate" formed
part) remained unsold; that existing contractual rights
acquired by vendors and purchasers of subdivided lots should
be accorded the appropriate constitutional protection of non
impairment; and that in view of the cardinal principle of
eminent domain for payment of just compensation of the
market value of the land "respondents may well consider that
the objectives of the Act may be accomplished more
expeditiously by a direct purchase of the available unsold lots
for resale at cost to the remaining bona fide occupants in
accordance with the Act's provisions or by extending financial
assistance to enable them to purchase directly the unsold lots
from petitioner. I do not see anything to be gained by
respondents from the institution of expropriation proceedings,
when petitioner-owner is actually selling the property in
subdivided lots." 3

III. That the proposed Azcarraga Extension could pass

through a different site which would entail less
expense to the Government and which would not
necessitate the expropriation of a property dedicated
to education.

The judgment at bar now clearly overturns the majority ruling

in Tuason that "the power of Congress to designate the
particular property to be taken and how much thereof may be
condemned in the exercise of the power of "expropriation"
must be duly recognized, leaving only as "a judicial question
whether in the exercise of such competence, the party
adversely affected is the victim of partiality and prejudice.
That the equal protection clause will not allow." 4 The Court
now clearly rules that such singling out of properties to be
expropriated by Presidential Decree as in the case at bar, or
by act of the legislature as in Tuason, does not foreclose
judicial scrutiny and determination as to whether such
expropriation by legislative act transgresses the due process
and equal protection, 5 and just compensation 6 guarantees of
the Constitution. As we hold now expressly in consonance with
my above-quoted separate opinion in Tuason: "To enjoin this
Court by decree from looking into alleged violations of the due
process, equal protection, and eminent domain clauses of the
Constitution is impermissible encroachment on its
independence and prerogatives." 7 As in all eminent domain
proceedings, the State may not capriciously or arbitrarily
single-out specific property for condemnation and must show
the necessity of the taking for public use.
G.R. No. L-12792

February 28, 1961

REPUBLIC OF THE PHILIPPINES, plaintiff-appellant,

vs.
LA ORDEN DE PP. BENEDICTINOS DE FILIPINAS, defendantappellee.
Office of the Solicitor General for plaintiff-appellant.
Ledesma, Puno, Guytingco, Antonio and Associates for
defendant-appellee.
DIZON, J.:
To ease and solve the daily traffic congestion on Legarda
Street, the Government drew plans to extend Azcarraga street
from its junction with Mendiola street, up to the Sta. Mesa
Rotonda, Sampaloc, Manila. To carry out this plan it offered to
buy a portion of approximately 6,000 square meters of a
bigger parcel belonging to La Orden de PP. Benedictinos de
Filipinas, a domestic religious corporation that owns the San
Beda College, a private educational institution situated on
Mendiola street. Not having been able to reach an agreement
on the matter with the owner, the Government instituted the
present expropriation proceedings.
On May 27, 1957 the trial court, upon application of the
Government hereinafter referred to as appellant issued
an order fixing the provisional value of the property in
question at P270,000.00 and authorizing appellant to take
immediate possession thereof upon depositing said amount.
The deposit having been made with the City Treasurer of
Manila, the trial court issued the corresponding order directing
the Sheriff of Manila to place appellant in possession of the
property aforesaid.
On June 8, 1957, as directed by the Rules of Court, the herein
appellee, in lieu of an answer, filed a motion to dismiss the
complaint based on the following grounds:
I. That the property sought to be expropriated is
already dedicated to public use and therefore is not
subject to expropriation.

IV. That the present action filed by the plaintiff

against the defendant is discriminatory.
V. That the herein plaintiff does not count with
sufficient funds to push through its project of
constructing the proposed Azcarraga Extension and
to allow the plaintiff to expropriate defendant's
property at this time would be only to needlessly
deprive the latter of the use of its property.".
The government filed a written opposition to the motion to
dismiss (Record on Appeal, pp. 30-37) while appellee filed a
reply thereto (Id., pp. 38-48). On July 29, 1957, without
receiving evidence upon the questions of fact arising from the
complaint, the motion to dismiss and the opposition thereto
filed, the trial court issued the appealed order dismissing the
case.
The appealed order shows that the trial court limited itself to
deciding the point of whether or not the expropriation of the
property in question is necessary (Rec. on Ap., p. 50) and,
having arrived at the conclusion that such expropriation was
not of extreme necessity, dismissed the proceedings.
It is to be observed that paragraph IV of the complaint
expressly alleges that appellant needs, among other
properties, the portion of appellee's property in question for
the purpose of constructing the Azcarraga street extension,
and that paragraph VII of the same complaint expressly
alleges that, in accordance with Section 64(b) of the Revised
Administrative Code, the President of the Philippines had
authorized the acquisition, thru condemnation proceedings, of
the aforesaid parcel of land belonging to appellee, as
evidenced by the third indorsement dated May 15, 1957 of
the Executive Secretary, Office of the President of the
Philippines, a copy of which was attached to the complaint as
Annex "C" and made an integral part thereof. In denial of
these allegations appellee's motion to dismiss alleged that
"there is no necessity for the proposed expropriation". Thus,
the question of fact decisive of the whole case arose.
It is the rule in this jurisdiction that private property may be
expropriated for public use and upon payment of just
compensation; that condemnation of private property is
justified only if it is for the public good and there is a genuine
necessity therefor of a public character. Consequently, the
courts have the power to inquire into the legality of the
exercise of the right of eminent domain and to determine
whether or not there is a genuine necessity therefor (City of
Manila vs. Chinese Community, 40 Phil. 349; Manila Railroad
Company vs. Hacienda Benito, Inc., 37 O.G. 1957).
Upon the other hand, it does not need extended argument to
show that whether or not the proposed opening of the
Azcarraga extension is a necessity in order to relieve the daily
congestion of traffic on Legarda St., is a question of fact
dependent not only upon the facts of which the trial court
very liberally took judicial notice but also up on other factors
that do not appear of record and must, therefore, be
established by means of evidence. We are, therefore, of the
opinion that the parties should have been given an
opportunity to present their respective evidence upon these
factors and others that might be of direct or indirect help in
determining the vital question of fact involved, namely, the
need to open the extension of Azcarraga street to ease and
solve the traffic congestion on Legarda street.
WHEREFORE, the appealed order of dismissal is set aside and
the present case is remanded to the trial court for further
proceedings in accordance with this decision. Without costs.
Bengzon, Actg. C.J., Padilla, Bautista Angelo, Labrador, Reyes,
J.B.L., Barrera and Paredes JJ., concur.
Concepcion, J., took no part.