047. PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners, vs.

COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR AND MUNICIPALITY OF BUNAWAN Feb. 20, 1997 Romero, J.
SV: The Sangguniang Bayan of Bunawan passed Resolution 43-89 authorizing the mayor to initiate the petition for expropriation for the site of the farmers center and other govt sports facilities. The Sangguniang Panlalawigan disapproved it, saying tha t expropriation was unnecessary, there being other available lands. Despite this disapproval, a Petition for Eminent Domain was filed by the Municipality of Bunawan. RTC granted the petition. CA affirmed the same. Subsequently buildings were also erected in the lot. Petitioners are arguing that since the Sangguniang Panlalawigan already disapproved the resolution, it was wrong for the CA to uphold it. Court held that Eminent domain is an inherent power of the State which may be validly delegated to local governments, other public entities and public utilities. Such power is expressly conferred to the Municipality in Sec. 9 of BP 337. The Sangguniang Panlalawigans disapproval doesnt render the resolution null and void because the former does not have the authority to do s o in the first place. Under BP 337, the the sole ground under which the Sangguniang Panlalawigan may declare a municipal resolution invalid is that it is beyond the power of the Sangguniang Bayan or the Mayor to issue.

FACTS: The Sangguniang Bayan of the Municipality of Bunawan, Agusan del Sur passed Resolution 43-89 ("Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4 along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports Facilities.") o This resolution was approved by Mun. Mayor Anuncio Bustillo and transmitted to the Sangguniang Panlalawigan (SP) for approval, but the latter disapproved it, saying that expropriation is unnecessary considering that there are still available lots in Bunawan for the establishment of the government center Despite this, the Municipality of Bunawan filed a Petition for Eminent Domain against Moday before the RTC, and it was later amended to include the registered owners (Modays parents, Zotico and Leonora) The Municipality then filed a Motion to Take or Enter Upon the Possession of Subject Matter of This Case, stating that: o it had already deposited the necessary amount with the municipal treasurer in accordance with Sec. 2, Rule 67, ROC, and; o It would be in the govts best interest for it to be allowed to take possession of the property [RTC] granted this petition and ordered to place the Municipality in possession of the property, despite Modays opposition: o The SPs failure to declare the resolution invalid leaves it effective. o The duty of SP is merely to review ordinances and resolutions passed by the Sangguniang Bayan under Sec. 208 (l), BP 337 o The exercise of eminent domain is not one of the 2 acts enumerated in Sec. 19 of the LGC requiring the approval of the SP It also set another hearing for the purpose of ascertaining the just compensation/fair market value of the property, with notice to all parties concerned. o Petitioners MR was denied. Petitioner went to CA on a petition for certiorari, alleging GAD. [CA] dismissed the petition. Petitioners filed MR, but the same was denied also. o The public purpose for expropriation is clear from the resolution, and since SP did not declare the same invalid, expropriation of petitioners property could proceed. Meanwhile, Municipality of Bunawan had erected 3 bldgs on the property1 Petitioners filed a petition for review, and the Court issued a TRO to enjoin the RTC from enforcing its order and the Municipality from using and occupying all the bldgs. constructed, and from further constructing any building on the land o Court also cited the incumbent Mayor in contempt, ordering him to pay the fine and to demolish the blocktiendas built in violation of the order.

The Association of Brgy Councils Hall, The Municipal Motorpool, Bunawan Municipal Gymnasium (the only concrete bldg.)

PARTIES ARGUMENTS Petitioners say: CA erred in upholding legality of condemnation proceedings. Expropriation was politically motivated and the resolution was correctly disapproved by the SP. The then incumbent mayor should pay damages for insisting on enforcement of the void resolution Respondents say: SPs reason for disapproving the resolution could be baseless since it failed to point out which and where are the available lots. Also, since SP did not declare the resolution as invalid, expropriation could proceed.

ISSUE: Can a municipality expropriate private property by virtue of a municipal resolution, which was disapproved by the Sangguniang Panlalawigan? (YES) Eminent domain is a fundamental State power that is inseparable from sovereignty. It is government's right to appropriate, in the nature of a compulsory sale to the State, private property for public use or purpose. o Inherently possessed by the national legislature, the power of eminent domain may be validly delegated to local governments, other public entities and public utilities. o For the taking of private property by the government to be valid, the taking must be for public use and there must be just compensation. The Municipalitys power to exercise the right of eminent domain is not disputed since it is provided for in BP 337, (old) LGC at the time the expropriation proceedings were initiated. In Sec. 9 thereof: o Section 9. Eminent Domain. A local government unit may, through its head and acting pursuant to a resolution of its sanggunian, exercise the right of eminent domain and institute condemnation proceedings for public use or purpose. The SPs disapproval of the Municipal Resolution is an infirm action which does NOT render the resolution null and void. o Sec. 153, BP 3372 grants the SP the power to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to issue. o [Velasco v Blas] The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid is when such resolution, ordinance, or order is 'beyond the powers conferred upon the council or president making the same.' Absolutely no other ground is recognized by the law o Thus the SP was without authority to disapprove the resolution since the Municipality has the power to exercise the right of eminent domain and the Sangguniang Bayan has the capacity to promulgate the resolution. o Perforce, it follows that Resolution No. 43-89 is valid and binding and could be used as lawful authority to petition for the condemnation of petitioners' property. Minor issue: Petitioners alleged that the then incumbent mayor only disliked Moday because he refused to support his candidacy, so he used the expropriation to retaliate, even if there are other available lands, such as the vacant 7 ha. land beside petitioners land. o In exercising public domain, the use must be public, compensation must be made and due process of law must be observed. Considering the adequacy of compensation, necessity of the taking and the public use character or the purpose of the taking, SC has ruled that the necessity of exercising eminent domain must be genuine and of a public character. o SC: No support for the allegations.

Petition DENIED.

Sec. 153. Sangguniang Panlalawigan Review. -- xxx (2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance, resolution or executive order invalid in whole or in part xxx The effect of such an action shall be to annul the ordinance, resolution or executive order in question in whole or in part xxx