Environmental Law
1 MEAD vs. ARGEL
The issue posed for determination in this case is whether or not
a Provincial Fiscal has the authority to file an information for a
violation of Republic Act No. 3931, entitled "An Act Creating a
National Water and Air Pollution Control Commission."
On March 11, 1975, petitioner Donald Mead and a certain Isaac
Arivas were charged by the Provincial Fiscal of Rizal with a
violation of Section 9, in relation to Section 10 of Republic Act
No. 3931, under an information reading as follows:
That on or about the 23rd day of August, 1972, and for
some time prior and subsequent thereto, in the
municipality of Malabon, province of Rizal, Philippines and
within the jurisdiction of this Honorable Court, the above-
named accused, being then the president and the general
manager, respectively, of the Insular Oil Refinery Co.
(INSOIL) a corporation duly organized in accordance with
existing laws, conspiring and confederating together and
mutually helping and aiding one another, did then and
there willfully, unlawfully and feloniously drain or
otherwise dispose into the highway canal and/or cause,
permit, suffer to be drained or allow to seep into such
waterway the industrial and other waste matters
discharged due to the operation of the said Insular Oil
Refinery Co. so managed and operated by them, thereby
causing pollution of such waterway with the resulting
damage and/or destruction to the living plants in the
vicinity and providing hazard to health and property in the
same vicinity.
The case was docketed as Criminal Case No. C-5984-75 and it
was subsequently assigned to Branch XXXV of the Court of First
Instance of Rizal (Caloocan City) presided over by the
respondent Judge.
On August 11, 1975, petitioner Donald Mead, one of the
accused in the criminal case, filed a motion to quash on the
grounds that the trial court has no jurisdiction and that the
Provincial Fiscal of Rizal has no legal personality to file the
above-quoted information. The motion to quash was denied by
the respondent Judge in an Order dated September 5, 1975. A
Motion For Reconsideration filed by the petitioner was also
denied by the respondent Judge in his Order of November 10,
1965. Hence, this petition for certiorari with preliminary
injunction to annul the said orders of the respondent Judge who
allegedly acted in excess of or without jurisdiction in issuing the
same.
In Our Resolution dated November 28, 1975, the respondents
were required to comment on the petition and a temporary
restraining order was issued to enjoin the respondent Judge
from enforcing his questioned orders until otherwise directed by
this Court.
It is the principal contention of the petitioner that the National
Water and Air Pollution Control Commission (hereinafter
referred to as the "Commission") as created under Republic Act
No. 3931 has the exclusive authority to determine the
existence of "pollution" before a criminal case can be filed for a
violation of the said law; and that it has the exclusive authority
to prosecute violations of the same. Petitioner further avers
that the Commission not having finally ruled that the petitioner
has violated Republic Act No. 3931, the Provincial Fiscal of Rizal
lacks the authority to prosecute the petitioner for a violation of
said law.
The respondents, on the other hand, maintain that while
Republic Act No. 3931 grants the power and duty to the
Commission to investigate and prosecute violations of Republic
Act No. 3931, such grant of power and authority is not
exclusive, and does not deprive fiscals and other public
prosecutors of their authority to investigate and prosecute
violations of the said law committed within their respective
jurisdictions.
Before discussing the main issue on its merits, We deem it
necessary to resolve a procedural question raised by the
respondents in support of their prayer that the instant petition
should not be entertained. Respondents advert to the rule that
when a motion to quash filed by an accused in a criminal case
shall be denied, the remedy of the accused- movant is not to
file a petition for certiorari or mandamus or prohibition, the
proper recourse being to go to trial, without prejudice to his
right to reiterate the grounds invoked in his motion to quash if
an adverse judgment is rendered against him, in the appeal
that he may take therefrom in the manner authorized by law.
(Mill vs. People, et al., 101 Phil. 599; Echarol us. Purisima, et al,
13 SCRA 309.)
There is no disputing the validity and wisdom of the rule
invoked by the respondents. However, it is also recognized
that, under certain situations, recourse to the extraordinary
legal remedies of certiorari, prohibition or mandamus to
question the denial of a motion to quash is considered proper in
the interest of "more enlightened and substantial justice", as
was so declared in "Yap vs. Lutero", G.R. No. L-12669, April 30,
1969, 105 Phil. 3007:
However, were we to require adherence to this pretense,
the case at bar would have to be dismissed and petitioner
required to go through the inconvenience, not to say the
mental agony and torture, of submitting himself to trial on
the merits in Case No. 16443, apart from the expenses
incidental thereto, despite the fact that his trial and
conviction therein would violate one of this constitutional
rights, and that, an appeal to this Court, we would,
therefore, have to set aside the judgment of conviction of
the lower court. This would, obviously, be most unfair and
unjust. Under the circumstances obtaining in the present
case, the flaw in the procedure followed by petitioner
herein may be overlooked, in the interest of a more
enlightened and substantial justice.
To the same effect is the pronouncement in "Pineda and Ampil
Manufacturing Co., vs. Bartolome, et al.," 95 Phil., 930938,
expressed as follows:
While a denial of a motion to dismiss for lack of jurisdiction
was held not to be a proper basis for a petition for
certiorari [Nico vs. Blanco, 46 Off. Gaz., Supp. (1) 88; 81
Phil., 2131, or an appeal not certiorari is the proper
remedy for correcting an error which a lower court may
commit in denying a motion to set aside a judgment, or in
setting aside an order of dismissal, [Rios vs. Ros et al., 45
Off. Gaz. (No. 3), 1265; 79 Phil. 243; Santos vs. Pecson, 45
Off. Gaz. (No. 3), 1278; 79 Phil.754] however, in some
instances, the Supreme Court has departed from the
general rule and has entertained the writ notwithstanding
the existence of an appeal. Thus, in one case the Supreme
Court took cognizance of a petition for certiorari
notwithstanding the fact that the accused could have
appealed in due time when it found that the action was
necessary to promote public welfare and public policy
(People vs. Zulueta, 89 Phil. 880). In another case, a
petition for certiorari to annul an order of the trial judge
admitting an amended information was entertained
although the accused had an adequate remedy by appeal
"inasmuch as the Surplus Property cases have attracted
nationwide attention, making it essential to proceed with
dispatch in the consideration thereof. (People vs, Zulueta,
supra. Citing Arevalo vs. Nepomuceno, 63 Phil., 627.) And
still in another case, the writ was entertained where the

appeal was found not to be adequate remedy, as where
2the order which is sought to be reviewed is merely of
interlocutory or peremptory character, and the appeal
therefrom can be interposed only after final judgment and
may therefore be of no avail. (Rocha vs. Crossfield, 6 Phil.,
355; Leung Ben vs. O'Brien, 38 Phil., 182. See also
Mendoza vs. Parungao, 49 Phil., 271; Dais vs. Court of First
Instance, 51 Phil., 36).
For analogous reasons it may be said that the petition for
certiorari interposed by the accused against the order of
the court a quo denying the motion to quash may be
entertained, not only because it was rendered in a criminal
case, but because it was rendered, as claimed, with grave
abuse of discretion, as found by the Court of Appeals, it
would be indeed unfair and unjust, if not derogatory of
their constitutional right, to force the accused to go to trial
under an information which, in their opinion, as was found,
accuses them of multiple offenses in contravention of law.
And so, in our opinion, the respondent court did not err in
entertaining the petition for certiorari instead of dismissing
it, as claimed.
The motion to quash filed by the accused in Yap vs. Lutero was
on the ground of double jeopardy. In Pineda vs. Bartolome, the
ground invoked was duplicity of offenses charged in the
information. In the case at bar, the petitioner assails the very
jurisdiction of the court wherein the criminal case was filed,
Certainly, there is a more compelling reason that such issue be
resolved soonest, in order to avoid the court's spending
precious time and energy unnecessarily in trying and deciding
the case, and to spare the accused from the inconvenience,
anxiety and embarrassment, let alone the expenditure of effort
and money, in undergoing trial for a case the proceedings in
which could possibly be annuled for want of jurisdiction. Even in
civil actions, We have counselled that when the court's
jurisdiction is attacked in a motion to dismiss, it is the duty of
the court to resolve the same as soon as possible in order to
avoid the unwholesome consequences mentioned above.
It is also advanced that the present petition is premature,
since respondent court has not definitely ruled on the
motion to dismiss, nor held that it has jurisdiction, but only
argument is untenable. The motion to dismiss was
predicated on the respondent court's lack of jurisdiction to
entertain the action, and the rulings of this Court are that
writs of certiorari or prohibition, or both, may issue in case
of a denial or deferment of action on such a motion to
dismiss for lack of jurisdiction.
Environmental Law
If the question of jurisdiction were not the main ground for form that shall cause pollution of such waters or
this petition for review by certiorari, it would be premature atmospheric air.
because it seeks to have a review of an interlocutory order.
But as it would be useless and futile to go ahead with the
It will be noted from the above-quoted provision that the
proceedings if the court below had no jurisdiction this
prohibited act is to throw, run, drain or otherwise dispose into
petition was given due course.' (San Beda vs. CIA 51 O.G.
any of the water and/or atmospheric air of the Philippines, any
6636, 5638).
organic or inorganic matter or substance "that shall cause
pollution of such waters or atmospheric air." Stated in simpler
While it is true that action on a motion to dismiss may be terms, the offense allegedly committed by the petitioner was
deferred until the trial and an order to that effect is the act of causing pollution of a waterway (highway canal).
interlocutory, still where it clearly appears that the trial
judge or court is proceeding in excess or outside of its
The term "pollution" as used in the law is not to be taken in its
jurisdiction, the remedy of prohibition would lie since it
ordinary signification. In Section 2, paragraph (a), of Republic
would be useless and a waste of time to go ahead with the
Act No. 3931, "pollution" is defined in these words:
proceedings. (Philippine International Fair, Inc., et al., vs.
Ibanez, et al, 50 Off. Gaz. 1036; Enrique vs. Macadaeg, et
all 47 Off. Gaz. 1207; see also San Beda College vs. CIR, (a) Pollution' means such alteration of the physical,
51 Off. Gaz. 5636.) (University of Sto. Tomas vs. chemical and/or biological properties of any water and/or
Villanueva, L-13748, 30 October 1959.) (Time, Inc. vs. atmospheric air of the Philippines, or any such discharge of
Reyes, 39 SCRA, pp. 315-316.) any liquid, gaseous or solid substance into any of the
waters and/or atmospheric air of the country as will or is
likely to create or render such waters and/or atmospheric
An additional factor that induced Us to entertain the instant
air harmful or detrimental or injurious to public health,
petition is the obvious merit We find in the same. Our reading
safety or welfare, or to domestic, commercial, industrial,
of the provisions of Republic Act No. 3931 has convinced Us
agricultural, recreational or other legitimate uses, or to
that the clear legislative intention is to vest in the Commission
livestock, wild animals, birds, fish or of her aquatic life.
the exclusive authority to determine the existence of "pollution"
penalized thereunder and to prosecute violations of said law.
The power to determine the existence of pollution is vested by
the law in the Commission. Section 6, among others, gives the
The information filed against the herein petitioner charges him
Commission the authority to "determine whether a pollution
with a violation of Section 9, in relation to Section 10 of
exists in any of the waters and/or atmospheric air of the
Republic Act No. 3931. More specifically, it alleges that the
Philippines." (Section 6(a), No. 1); to "hold public hearings, ...
petitioner, with his co-accused Isaac Arivas, "willfully,
make findings of facts and determinations all with respect to
unlawfully and feloniously drain or otherwise dispose into the
the violations of this Act or orders issued by the Commission."
highway canal and/or cause, permit, suffer to be drained or
(Ibid., No. 3); to "institute or cause to be instituted in the court
allow to seep into such waterway the industrial and other waste
of competent jurisdiction legal proceedings to compel
matters discharged due to the operation of the said Insular Oil
compliance with the provisions of this Act" (Ibid, No. 5); and,
Refinery Co. so managed and operated by them, thereby
"after due notice and hearing, revoke, suspend or modify any
causing pollution of such waterway with the resulting damage
permit issued under this Act whenever modifications are
and/or destruction to the arriving plants in the vicinity and
necessary to prevent or abate pollution of any water and/or
providing hazard to health and property in the same vicinity."
atmospheric air of the Philippines." (Ibid., No. 7.) Section 8
contains explicit provisions as to the authority of the
Section 9 in its first paragraph, supposedly the criminal act Commission to determine the existence of pollution and to take
being imputed to the petitioner, reads as follows: appropriate court actions to abate or prevent the same. It
provides:
SEC. 9. Prohibitions. No person shall throw, run, drain, or
otherwise dispose into any of the water and/or SEC. 8. Proceedings before the Commission . The
atmospheric air of the Philippines, or cause, permit, suffer Commission may, on its own motion, or upon the request
to be thrown, run, drain, allow to see or otherwise dispose of any person, investigate or may inquire, in a manner to
into such waters or atmospheric air, any organic or be determined by it, as to any alleged act of pollution or
inorganic matter or any substance in gaseous or liquid

the omission or failure to comply with any provisions of
this Act or any order of this Commission.
3
Whenever it appears to the Commission, after
investigation, that there has been a violation of any of the
provisions of this Act or any order of the Commission, it
may order whoever causes such violation to show cause
before said Commission why such discharge of industrial
wastes or any waste should not be discontinued. A notice
shall be served on the offending party directing him or it to
show cause before the Commission, on a date specified in
such notice, why an order should not be made directing
the discontinuance of such violation. Such notice shall
specify the time and the place where a public hearing will
be held by the Commission or its authorized
representatives, and notice of such hearing shall be served
personally or by registered mail, at least ten days before
said hearing; and in the case of a municipality or
corporation such notice shall be served upon the major or
president thereof. The Commission shall take evidence
with reference to said matter and may issue an order to
the party responsible for such violation, directing that
within a specified period of time thereafter, such violation
be discontinued unless adequate sewage works or
industrial wastes disposal system be properly operated to
prevent further damage or pollution.
No investigation being conducted or ruling made by the
Commission shall prejudice any action which may be filed
in court by any person in accordance with the provisions of
the New Civil Code on nuisance. On matters, however, not
related to nuisance, no court action shall be initiated until
the Commission shall have finally ruled thereon and no
order of the Commission discontinuing the discharge of
waste shall be stayed by the filing of said court action,
unless the court issues an injunction as provided for in the
Rules of Court.
The last paragraph of the above-quoted provision delineates
the authority to be exercised by the Commission and by the
ordinary courts in respect of preventing or remedying the
pollution of the waters or atmospheric air of the Philippines.
The provision excludes from the authority of the Commission
only the determination of and the filing of court actions
involving violations of the New Civil Code on nuisance. It is
expressly directed that on matters not related to nuisance "no
court action shall be initiated until the Commission shall have
finally ruled thereon." This provision leaves little room for doubt
that a court action involving the determination of the existence
of pollution may not be initiated until and unless the
Commission has so determined the existence of what in the law
is considered pollution.
It may not be argued that the above-cited provision refers only
to the filing of civil actions, and not to criminal cases as is the
one herein involved, there being no basis either in the context
in law nor from a consideration of the purpose behind the
enactment of the same upon which such a distinction may be
made. Indeed, respondents do not seriously question that the
court action contemplated in the last paragraph of Section 8
includes criminal proceedings. Respondents merely aver that
the aforementioned grant of authority to the Commission is not
exclusive of the power of Fiscals to file criminal actions for a
violation of the provisions of Republic Act No. 3931.
We are likewise not in accord with the view that the law
intended to give concurrent authority to the Commission and
Fiscals to prosecute violations of Republic Act No. 3931. It is
true that there is no provision expressly declaring that the
authority vested in the Commission to prosecute violations of
Republic Act No. 3931 is exclusive. Using the same logic, there
is neither a provision declaring such authority to be concurrent
or may be exercised jointly with Fiscals. The absence of an
explicit declaration as to the exclusive authority of the
Commission to prosecute violations of the subject law does not
detract from the clear intention to make it so, as gathered from
the philosophy of the law itself and as gleaned from several
provisions of the same. It is clearly deducible from the provision
of Section 8 expressly declaring that no court action shall be
initiated, except those related to nuisance, until the
Commission shall have finally ruled on the alleged act of
pollution; and also from Section 6(a), No. 5, which authorizes
the Commission to "initiate or cause to be instituted in a court
of competent jurisdiction legal proceedings to compel
compliance with the provisions of this Act."
As may be seen from the law, the determination of the
existence of pollution requires investigation, public hearings
and the collection of various information relating to water and
atmospheric pollution. (Sections 6, 7, and 8.) The definition of
the term "pollution" in itself connotes that the determination of
its existence requires specialized knowledge of technical and
scientific matters which are not ordinarily within the
competence of Fiscals or of those sitting in a court of justice. It
is undoubtedly in recognition of this fact that in Section 4 of the
law, it is provided that "the basic personnel necessary to carry
out the provisions of this Act shall be engineers, chemists,
biochemists, physicists, and other technicians"; and required in
Section 3 that the Chairman of the Commission shall be the
Chairman of the National Science Development Board, one of
the part-time commissioners shall be a recommendee of the
Environmental Law
Philippine Council of Science and Technology, and one of the
two full-time commissioner shall be a sanitary engineer.
The vesting of authority in an administrative body to determine
when to institute a criminal action for a violation of the law
entrusted to it for administration or enforcement, to the
exclusion of the regular prosecution service of the government,
is not new in this jurisdiction. It is recognized in Yao Lit vs.
Geraldez et al., 106 Phil. 545 which upheld the exclusive
authority of the Commissioner of Immigration' to investigate
and impose administrative fines upon violators of the provisions
of Republic Act No. 751 for the reason that said official "has
better facilities than the prosecuting officials to carry out the
provisions of the said Act, the former official being the keeper
of the records pertaining to aliens." The same principle has
been recognized with respect to the prosecutions of violations
of the Anti-Dummy Law (Republic Act No. 1131.) In holding that
the City Fiscal of Manila has no authority to prosecute such
violations independently of the Anti-Dummy Board, it was said:
Were the city fiscal or the provincial fiscals who have the
power or right to prosecute violations of all laws and
ordinances allowed to prosecute violations of the Anti-
Dummy Board, there would be no order, concert,
cooperation, and coordination between the said agencies
of the government. The function of coordination which is
entrusted to the Anti-Dummy Board is evident from all the
above-quoted provisions of Republic Act No. 1130. There
can be no coordination as envisioned in the law unless the
Anti-Dummy Board be given the power to direct and
control the city fiscal in the prosecutions of the violations
of the Anti-Dummy Law. (Rollo, p. 118; 5 SCRA 428,433.)
In R. B. Industrial Development Co., Ltd. vs. Enage (24 SCRA
365) involving the authority of the Bureau of Forestry over the
management and use of public forests and the transfer of
licenses for the taking of forest products, this Court has made
this pronouncement:
A doctrine long recognized is that where the law confines
in an administrative office the power to determine
particular questions or matters, upon the facts to be
presented, the jurisdiction of such office shall prevail over
the courts. (p. 124, Rollo.)
It is our considered view that the Provincial Fiscal of Rizal
lacked the authority to file the information charging the
petitioner with a violation of the provisions of Republic Act No.
3931 there being no prior finding or determination by the
Commission that the act of the petitioner had caused pollution

in any water or atmospheric air of the Philippines. It is not to be
understood, however, that a fiscal or public prosecutor may not
4 of the wastewater was being directly discharged into
file an information for a violation of the said law at all. He may
do so if the Commission had made a finding or determination
that the law or any of its orders had been violated. In the
criminal case presently considered, there had been no prior
determination by the Commission that the supposed acts of the
petitioner had caused pollution to any water of the Philippines.
The filing of the information for the violation of Section 9 of the
law is, therefore, premature and unauthorized.
Concommittantly, the respondent Judge is without jurisdiction
to take cognizance of the offense charged therein.
WHEREFORE, the petition is hereby granted and the questioned
Orders of the respondent Judge are hereby annuled and set
aside. The respondent Judge is ordered to dismiss Criminal
Case No. 5984-75 for lack of jurisdiction. No costs.
SO ORDERED.
PAB vs. CA
Petitioner Pollution Adjudication Board ("Board") asks us to
review the Decision and Resolution promulgated on 7 February
1990 and 10 May 1990, respectively, by the Court of Appeals in
C.A.-G R. No. SP 18821 entitled "Solar Textile Finishing
Corporation v. Pollution Adjudication Board." In that Decision
and Resolution, the Court of Appeals reversed an order of the
Regional Trial Court, Quezon City, Branch 77, in Civil Case No.
Q-89-2287 dismissing private respondent Solar Textile Finishing
Corporation's ("Solar") petition for certiorari and remanded the
case to the trial court for further proceedings.
On 22 September 1988, petitioner Board issued an ex
parte Order directing Solar immediately to cease and desist
from utilizing its wastewater pollution source installations which
were discharging untreated wastewater directly into a canal
leading to the adjacent Tullahan-Tinejeros River. The Order
signed by Hon. Fulgencio Factoran, Jr., as Board Chairman,
reads in full as follows:
Respondent, Solar Textile Finishing Corporation with
plant and place of business at 999 General Pascual
Avenue, Malabon, Metro Manila is involved in
bleaching, rinsing and dyeing textiles with wastewater
of about 30 gpm. being directly discharged untreated
into the sewer. Based on findings in the Inspections
conducted on 05 November 1986 and 15 November
1986, the volume of untreated wastewater discharged
in the final out fall outside of the plant's compound
was even greater. The result of inspection conducted
on 06 September 1988 showed that respondent's
Wastewater Treatment Plant was noted unoperational
and the combined wastewater generated from its
operation was about 30 gallons per minute and 80%
a drainage canal leading to the Tullahan-Tinejeros
River by means of a by-pass and the remaining 20%
was channelled into the plant's existing Wastewater
Treatment Plant (WTP). Result of the analyses of the
sample taken from the by-pass showed that the
wastewater is highly pollutive in terms of Color units,
BOD and Suspended Solids, among others. These acts
of respondent in spite of directives to comply with the
requirements are clearly in violation of Section 8 of
Presidential Decree No. 984 and Section 103 of its
Implementing Rules and Regulations and the 1982
Effluent Regulations.
WHEREFORE, pursuant to Section 7 of P.D. 984 and
Section 38 of its Implementing Rules and Regulations,
respondent is hereby ordered to cease and desist
from utilizing its wastewater pollution source
installation and discharging its untreated wastewater
directly into the canal leading to the Tullahan-
Tinejeros River effective immediately upon receipt
hereof and until such time when it has fully complied
with all the requirements and until further orders from
this Board.
SO ORDERED.1
We note that the above Order was based on findings of several
inspections of Solar's plant:
a. inspections conducted on 5 November 1986 and 12
November 1986 by the National Pollution Control
Commission ("NPCC"), the predecessor of the Board ;
2
and
b. the inspection conducted on 6 September 1988 by
the Department of Environment and Natural
Resources ("DENR").
The findings of these two (2) inspections were that Solar's
wastewater treatment plant was non-operational and that its
plant generated about 30 gallons per minute of wastewater,
80% of which was being directly discharged into a drainage
canal leading to the Tullahan-Tinejeros River. The remaining
20% of the wastewater was being channeled through Solar's
non-operational wastewater treatment plant. Chemical analysis
of samples of Solar's effluents showed the presence of
pollutants on a level in excess of what was permissible under
P.D. No. 984 and its Implementing Regulations.
A copy of the above Order was received by Solar on 26
September 1988. A Writ of Execution issued by the Board was
received by Solar on 31 March 1989.
Environmental Law
Meantime, Solar filed a motion for reconsideration/appeal with
prayer for stay of execution of the Order dated 22 September
1988. Acting on this motion, the Board issued an Order dated
24 April 1989 allowing Solar to operate temporarily, to enable
the Board to conduct another inspection and evaluation of
Solar's wastewater treatment facilities. In the same Order, the
Board directed the Regional Executive Director of the DENR/
NCR to conduct the inspection and evaluation within thirty (30)
days.
On 21 April 1989, however, Solar went to the Regional Trial
Court of Quezon City, Branch 77, on petition for certiorari with
preliminary injunction against the Board, the petition being
docketed as Civil Case No. Q-89-2287.
On 21 July 1989, the Regional Trial Court dismissed Solar's
petition upon two (2) grounds, i.e., that appeal and not
certiorari from the questioned Order of the Board as well as the
Writ of Execution was the proper remedy, and that the Board's
subsequent Order allowing Solar to operate temporarily had
rendered Solar's petition moot and academic.
Dissatisfied, Solar went on appeal to the Court of Appeals
which, in the Decision here assailed, reversed the Order of
dismissal of the trial court and remanded the case to that court
for further proceedings. In addition, the Court of Appeals
declared the Writ of Execution null and void. At the same time,
the Court of Appeals said in the dispositive portion of its
Decision that:
. . .. Still and all, this decision is without prejudice to
whatever action the appellee [Board] may take
relative to the projected 'inspection and evaluation' of
appellant's [Solar's] water treatment facilities. 3
The Court of Appeals, in so ruling, held that certiorari was a
proper remedy since the Orders of petitioner Board may result
in great and irreparable injury to Solar; and that while the case
might be moot and academic, "larger issues" demanded that
the question of due process be settled. Petitioner Board moved
for reconsideration, without success.
The Board is now before us on a Petition for Review basically
arguing that:
1. its ex parte Order dated 22 September 1988 and
the Writ of Execution were issued in accordance with
law and were not violative of the requirements of due
process; and
2. the ex parte Order and the Writ of Execution are
not the proper subjects of a petition for certiorari.
 Environmental Law
The only issue before us at this time is whether or not the Court parte cease and desist order may be issued. It is enough if the The reports on the inspections carried on Solar's wastewater
of Appeals erred in reversing the trial court on the ground that Board finds that the wastes discharged do exceed "the treatment facilities on 5 and 12 November 1986 and 6
5 had been denied due process by the Board.
Solar allowable standards set by the [NPCC]." In respect of September 1988 set forth the following Identical finding:
discharges of wastes as to which allowable standards have
been set by the Commission, the Board may issue an ex
Petitioner Board claims that under P.D. No. 984, Section 7(a), it parte cease and desist order when there is prima a. For legal action in [view of] implementing rules and
has legal authority to issue ex parte orders to suspend the facie evidence of an establishment exceeding such allowable regulations of P.D. No. 984 and Section 5 of the
operations of an establishment when there is prima standards. Where, however, the effluents or discharges have Effluent Regulations of 1982. 6
facie evidence that such establishment is discharging effluents not yet been the subject matter of allowable standards set by
or wastewater, the pollution level of which exceeds the the Commission, then the Board may act on an ex parte basis
maximum permissible standards set by the NPCC (now, the Placing the maximum allowable standards set in Section 5 of
when it finds at least prima facie proof that the wastewater or the Effluent Regulations of 1982 alongside the findings of the
Board). Petitioner Board contends that the reports before it material involved presents an "immediate threat to life, public
concerning the effluent discharges of Solar into the Tullahan- November 1986 and September 1988 inspection reports, we
health, safety or welfare or to animal or plant life." Since the get the following results:
Tinejeros River provided prima facie evidence of violation by applicable standards set by the Commission existing at any
Solar of Section 5 of the 1982 Effluent Code. given time may well not cover every possible or imaginable
kind of effluent or waste discharge, the general standard of an "Inland November Septemb
Solar, on the other hand, contends that under the Board's own "immediate threat to life, public health, safety or welfare, or to Waters 1986 er
rules and regulations, an ex parte order may issue only if the animal and plant life" remains necessary. (Class C & Report8 1988
effluents discharged pose an "immediate threat to life, public D7 Station 1 Report9
health, safety or welfare, or to animal and plant life." In the Station 1
Upon the other hand, the Court must assume that the extant
instant case, according to Solar, the inspection reports before allowable standards have been set by the Commission or Board a) Color in 100 a) Color units 250 125
the Board made no finding that Solar's wastewater discharged platinum (Apparent
precisely in order to avoid or neutralize an "immediate threat to
posed such a threat. life, public health, safety or welfare, or to animal or plant life.'' cobalt Color)
units
The Court is not persuaded by Solar's contention. Section 7(a) b) pH 6- b) pH 9.3 8.7
Section 5 of the Effluent Regulations of 1982 4 sets out the 8.5
of P.D. No. 984 authorized petitioner Board to issue ex maximum permissible levels of physical and chemical
parte cease and desist orders under the following c) Tempera- 40 c) Temperatur
substances which effluents from domestic wastewater ture in C e
circumstances: treatment plants and industrial plants" must not exceed "when
(C)
discharged into bodies of water classified as Class A, B, C, D, SB
and SC in accordance with the 1978 NPCC Rules and d) Phenols 0.1 d) Phenols in
P.D. 984, Section 7, paragraph (a), provides:
Regulations." The waters of Tullahan-Tinejeros River are in mg./1.
classified as inland waters Class D under Section 68 of the 1978 mg.1
(a) Public Hearing. . . . Provided, That whenever the NPCC Rules and Regulations 5 which in part provides that: e) Suspende 75 e) Suspended 340 80
Commission finds prima facie evidence that the d solids in
discharged sewage or wastes are of immediate threat solids in mg./1.
to life, public health, safety or welfare, or to animal or Sec. 68. Water Usage and Classification. The mg./1.
plant life, or exceeds the allowable standards set by quality of Philippine waters shall be maintained in a
f) BOD in 80 f) BOD (5-day) 1,100 152
the Commission, the Commissioner may issue an ex- safe and satisfactory condition according to their best
mg./1. mg./1
parte order directing the discontinuance of the same usages. For this purpose, all water shall be classified
according to the following beneficial usages: g) oil/Grease 10 g) Oil/Grease
or the temporary suspension or cessation of operation
in mg./1. mg./1.
of the establishment or person generating such
sewage or wastes without the necessity of a prior h) Detergent 5 h) Detergents 2.93
(a) Fresh Surface Water s mg./1.
public hearing. The said ex-parte order shall be
Classification Best usage mg./1." MBAS
immediately executory and shall remain in force until
xxx xxx xxx
said establishment or person prevents or abates the i) Dissolved 0
said pollution within the allowable standards or oxygen,
modified or nullified by a competent court. (Emphasis Class D For agriculture, irrigation, mg./1.
supplied) livestock watering j) Settleable 0.4 1.5
and industrial cooling and Matter,
We note that under the above-quoted portion of Section 7(a) of processing. mg./1.
P.D. No. 984, an ex parte cease and desist order may be issued k) Total Dis 800 610
by the Board (a) whenever the wastes discharged by an solved
establishment pose an "immediate threat to life, public health, xxx xxx xxx Solids
safety or welfare, or to animal or plant life," or (b) whenever mg./1.
such discharges or wastes exceed "the allowable standards set (Emphases supplied) l) Total Solids 1,400 690
by the [NPCC]." On the one hand, it is not essential that the m) Turbidity NTU / ppm, 70
Board prove that an "immediate threat to life, public health, SiO3
safety or welfare, or to animal or plant life" exists before an ex

6 effluents emanating from Solar's plant exceeded the maximum
The November 1986 inspections report concluded that:
Records of the Commission show that the plant under its
previous owner, Fine Touch Finishing Corporation, was
issued a Notice of Violation on 20 December 1985
directing same to cease and desist from conducting dyeing
operation until such time the waste treatment plant is
already completed and operational. The new owner Solar
Textile Corporation informed the Commission of the plant
acquisition thru its letter dated March 1986 (sic).
The new owner was summoned to a hearing held on 13
October 1986 based on the adverse findings during the
inspection/water sampling test conducted on 08 August
1986. As per instruction of the Legal Division a re-
inspection/sampling text should be conducted first before
an appropriate legal action is instituted; hence, this
inspection.
Based on the above findings, it is clear that the new owner
continuously violates the directive of the Commission by
undertaking dyeing operation without completing first and
operating its existing WTP. The analysis of results on water
samples taken showed that the untreated wastewater
from the firm pollutes our water resources. In this
connection, it is recommended that appropriate legal
action be instituted immediately against the firm. . . . 10
The September 1988 inspection report's conclusions were:
1. The plant was undertaking dyeing, bleaching and rinsing
operations during the inspection. The combined
wastewater generated from the said operations was
estimated at about 30 gallons per minute. About 80% of
the wastewater was traced directly discharged into a
drainage canal leading to the Tullahan-Tinejeros river by
means of a bypass. The remaining 20% was channeled
into the plant's existing wastewater treatment plant (WTP).
2. The WTP was noted not yet fully operational- some
accessories were not yet installed.1wphi1 Only the sump
pit and the holding/collecting tank are functional but
appeared seldom used. The wastewater mentioned
channeled was noted held indefinitely into the collection
tank for primary treatment. There was no effluent
discharge [from such collection tank].
3. A sample from the bypass wastewater was collected for
laboratory analyses. Result of the analyses show that the
bypass wastewater is polluted in terms of color units, BOD
and suspended solids, among others. (Please see attached
laboratory resul .)11
From the foregoing reports, it is clear to this Court that there
was at least prima facie evidence before the Board that the
allowable levels of physical and chemical substances set by the
NPCC and that accordingly there was adequate basis
supporting the ex parte cease and desist order issued by the
Board. It is also well to note that the previous owner of the
plant facility Fine Touch Finishing Corporation had been issued a
Notice of Violation on 20 December 1985 directing it to cease
and refrain from carrying out dyeing operations until the water
treatment plant was completed and operational. Solar, the new
owner, informed the NPCC of the acquisition of the plant on
March 1986. Solar was summoned by the NPCC to a hearing on
13 October 1986 based on the results of the sampling test
conducted by the NPCC on 8 August 1986. Petitioner Board
refrained from issuing an ex parte cease and desist order until
after the November 1986 and September 1988 re-inspections
were conducted and the violation of applicable standards was
confirmed. In other words, petitioner Board appears to have
been remarkably forbearing in its efforts to enforce the
applicable standards vis-a-vis Solar. Solar, on the other hand,
seemed very casual about its continued discharge of untreated,
pollutive effluents into the Tullahan- Tinerejos River,
presumably loath to spend the money necessary to put its
Wastewater Treatment Plant ("WTP") in an operating condition.
In this connection, we note that in Technology Developers, Inc.
v. Court of appeals, et al.,12 the Court very recently upheld the
summary closure ordered by the Acting Mayor of Sta. Maria,
Bulacan, of a pollution-causing establishment, after finding that
the records showed that:
1. No mayor's permit had been secured. While it is true
that the matter of determining whether there is a pollution
of the environment that requires control if not prohibition
of the operation of a business is essentially addressed to
the then National Pollution Control Commission of the
Ministry of Human Settlements, now the Environmental
Management Bureau of the Department of Environment
and Natural Resources, it must be recognized that the
mayor of a town has as much responsibility to protect its
inhabitants from pollution, and by virtue of his police
power, he may deny the application for a permit to
operate a business or otherwise close the same unless
appropriate measures are taken to control and/or avoid
injury to the health of the residents of the community from
the emission in the operation of the business.
2. The Acting Mayor, in a letter of February l6, 1989, called
the attention of petitioner to the pollution emitted by the
fumes of its plant whose offensive odor "not only pollute
the air in the locality but also affect the health of the
residents in the area," so that petitioner was ordered to
stop its operation until further orders and it was required
to bring the following:
xxx xxx xxx
Environmental Law
(3) Region III-Department of Environment and Natural
Resources Anti-Pollution permit. (Annex A-2, petition)
3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria,
Bulacan, directed to the Provincial Governor through
channels (Annex A-B, petition).. . .
4. The closure order of the Acting Mayor was issued only
after an investigation was made by Marivic Guina who in
her report of December 8, 1988 observed that the fumes
emitted by the plant of petitioner goes directly to the
surrounding houses and that no proper air pollution device
has been installed. (Annex A-9, petition)
xxx xxx xxx
6. While petitioner was able to present a temporary permit
to operate by the then National Pollution Control
Commission on December 15,1987, the permit was good
only up to May 25,1988 (Annex A-12, petition). Petitioner
had not exerted any effort to extend or validate its permit
much less to install any device to control the pollution and
prevent any hazard to the health of the residents of the
community."
In the instant case, the ex parte cease and desist Order was
issued not by a local government official but by the Pollution
Adjudication Board, the very agency of the Government
charged with the task of determining whether the effluents of a
particular industrial establishment comply with or violate
applicable anti-pollution statutory and regulatory provisions.
Ex parte cease and desist orders are permitted by law and
regulations in situations like that here presented precisely
because stopping the continuous discharge of pollutive and
untreated effluents into the rivers and other inland waters of
the Philippines cannot be made to wait until protracted
litigation over the ultimate correctness or propriety of such
orders has run its full course, including multiple and sequential
appeals such as those which Solar has taken, which of course
may take several years. The relevant pollution control statute
and implementing regulations were enacted and promulgated
in the exercise of that pervasive, sovereign power to protect
the safety, health, and general welfare and comfort of the
public, as well as the protection of plant and animal life,
commonly designated as the police power. It is a constitutional
commonplace that the ordinary requirements of procedural due
process yield to the necessities of protecting vital public
interests like those here involved, through the exercise of police
power. The Board's ex parte Order and Writ of Execution would,
of course, have compelled Solar temporarily to stop its plant
operations, a state of affairs Solar could in any case have
avoided by simply absorbing the bother and burden of putting
its WTP on an operational basis. Industrial establishments are
not constitutionally entitled to reduce their capitals costs and

operating expenses and to increase their profits by imposing
upon the public threats and risks to its safety, health, general
7 and comfort, by disregarding the requirements of anti-
welfare
pollution statutes and their implementing regulations.
It should perhaps be made clear the Court is not here saying
that the correctness of the ex parte Order and Writ of Execution
may not be contested by Solar in a hearing before the Board
itself. Where the establishment affected by an ex parte cease
and desist order contests the correctness of the prima
facie findings of the Board, the Board must hold a public
hearing where such establishment would have an opportunity
to controvert the basis of such ex parteorder. That such an
opportunity is subsequently available is really all that is
required by the due process clause of the Constitution in
situations like that we have here. The Board's decision rendered
after the public hearing may then be tested judicially by an
appeal to the Court of Appeals in accordance with Section 7(c)
of P.D. No. 984 and Section 42 of the Implementing Rules and
Regulations. A subsequent public hearing is precisely what
Solar should have sought instead of going to court to seek
nullification of the Board's Order and Writ of Execution and
instead of appealing to the Court of Appeals. It will be recalled
the at the Board in fact gave Solar authority temporarily to
continue operations until still another inspection of its
wastewater treatment facilities and then another analysis of
effluent samples could be taken and evaluated.
Solar claims finally that the petition for certiorari was the
proper remedy as the questioned Order and Writ of Execution
issued by the Board were patent nullities. Since we have
concluded that the Order and Writ of Execution were entirely
within the lawful authority of petitioner Board, the trial court
did not err when it dismissed Solar's petition for certiorari. It
follows that the proper remedy was an appeal from the trial
court to the Court of Appeals, as Solar did in fact appeal.
ACCORDINGLY, the Petition for Review is given DUE COURSE
and the Decision of the Court of Appeals dated 7 February 1990
and its Resolution dated 10 May 1990 in A.C.-G.R. No. SP 18821
are hereby SET ASIDE. The Order of petitioner Board dated 22
September 1988 and the Writ of Execution, as well as the
decision of the trial court dated 21 July 1989, are hereby
REINSTATED, without prejudice to the right of Solar to contest
the correctness of the basis of the Board's Order and Writ of
Execution at a public hearing before the Board.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
TECHNOLOGY DEVELOPERS vs. CA
The authority of the local executive to protect the community
from pollution is the center of this controversy.
The antecedent facts are related in the appealed decision of
the Court of Appeals as follows:
Petitioner, a domestic private corporation engaged in the
manufacture and export of charcoal briquette, received a
letter dated February 16, 1989 from private respondent
acting mayor Pablo N. Cruz, ordering the full cessation of
the operation of the petitioner's plant located at Guyong,
Sta. Maria, Bulacan, until further order. The letter likewise
requested Plant Manager Mr. Armando Manese to bring
with him to the office of the mayor on February 20, 1989
the following: a) Building permit; b) Mayor's permit; c)
Region III-Pollution of Environment and Natural Resources
Anti-Pollution Permit; and of other document.
At the requested conference on February 20, 1989,
petitioner, through its representative, undertook to comply
with respondent's request for the production of the
required documents. In compliance with said undertaking,
petitioner commenced to secure "Region III-Department of
Environmental and Natural Resources Anti-Pollution
Permit," although among the permits previously secured
prior to the operation of petitioner's plant was a
"Temporary Permit to Operate Air Pollution Installation"
issued by the then National Pollution Control Commission
(now Environmental Management Bureau) and is now at a
stage where the Environmental Management Bureau is
trying to determine the correct kind of anti-pollution devise
to be installed as part of petitioner's request for the
renewal of its permit.
Petitioner's attention having been called to its lack of
mayor's permit, it sent its representatives to the office of
the mayor to secure the same but were not entertained.
On April 6, 1989, without previous and reasonable notice
upon petitioner, respondent acting mayor ordered the
Municipality's station commander to padlock the premises
of petitioner's plant, thus effectively causing the stoppage
of its operation.
Left with no recourse, petitioner instituted an action
for certiorari, prohibition, mandamus with preliminary
injunction against private respondent with the court a
quo which is presided by the respondent judge. In its
prayer for the issuance of a writ of preliminary mandatory
injunction, it alleged therein that the closure order was
issued in grave abuse of discretion.
During the hearing of the application for the issuance of a
writ of preliminary injunction on April 14, 1989, herein
parties adduced their respective evidences. The
respondent judge, April 19, 1989, found that petitioner is
entitled to the issuance of the writ of preliminary
mandatory injunction, hence, it ordered as follows:
In view of the foregoing, upon petitioner's posting of a
bond in the amount of P50,000.00 to answer for such
damages that respondents may sustain should
Environmental Law
petitioner eventually be found not entitled to the
injunctive relief hereby issued, let a PRELIMINARY
MANDATORY INJUNCTION issue ordering the
respondent Hon. Pablo N. Cruz, and other person
acting in his behalf and stead to immediately revoke
his closure order dated April 6, 1989, and allow
petitioner to resume its normal business operations
until after the instant case shall have been
adjudicated on the merits without prejudice to the
inherent power of the court to alter, modify or even
revoke this order at any given time.
SO ORDERED.
The writ of preliminary mandatory injunction was
issued on April 28, 1989, upon petitioner's posting a
bond in the amount of P50,000.00.
Private respondent filed his motion for reconsideration
dated May 3, 1989. Said motion for reconsideration
was heard on May 30, 1989. Petitioner's counsel failed
to appear and the hearing proceeded with the
Provincial Prosecutor presenting his evidence. The
following documents were submitted:
a) Exhibit "A", Investigation report on the Technology
Developers Inc., prepared by one Marivic Guina, and
her conclusion and recommendation read:
Due to the manufacturing process and
nature of raw materials used, the fumes
coming from the factory may contain
particulate matters which are hazardous to
the health of the people. As such, the
company should cease operating until such
a time that the proper air pollution device is
installed and operational.
b) Exhibits "B", "B-1", "B-2", three (3) sheets of
coupon bond containing signatures of residents of
Barangay Guyong, Sta. Maria, Bulacan;
c) Exhibit "B-3", a letter addressed to Hon. Roberto
Pagdanganan Governor of the Province of Bulacan,
dated November 22, 1988, complaining about the
smoke coming out of the chimney of the company
while in operation.
Reassessing all the evidence adduced, the lower
court, on June 14, 1989, issued an order (a) setting
aside the order dated April 28, 1989, which granted a
Writ of Preliminary Mandatory Injunction, and (b)
dissolving the writ consequently issued.

A motion for reconsideration dated July 6, 1989 was
filed by petitioner. Said motion drew an opposition
8 dated July 19, 1989 from private respondent.
Resolving the petitioner's motion for reconsideration,
the respondent judge issued an order dated August 9,
1989, denying said motion for reconsideration. 1
Hence a petition for certiorari and prohibition with preliminary
injunction was filed by petitioner in the Court of Appeals
seeking to annul and set aside (a) the order issued by the trial
court on June 14, 1989, setting aside the order dated April 28,
1989, and (b) the order of August 9, 1989, denying petitioner's
motion for reconsideration of the order of June 14, 1989. In due
course the petition was denied for lack of merit by the
appellate court in a decision dated January 26, 1990. 2 A motion
for reconsideration thereof filed by petitioner was denied on
August 10, 1990.
Thus, the herein petition for review on certiorari filed with this
Court. Six errors are alleged to have been committed by the
appellate court which may be synthesized into the singular
issue of whether or not the appellate court committed a grave
abuse of discretion in rendering its question decision and
resolution.
The petition is devoid of merit.
The well-known rule is that the matter of issuance of a writ of
preliminary injunction is addressed to the sound judicial
discretion of the trial court and its action shall not be disturbed
on appeal unless it is demonstrated that it acted without
jurisdiction or in excess of jurisdiction or otherwise, in grave
abuse of its discretion. By the same token the court that issued
such a preliminary relief may recall or dissolve the writ as the
circumstances may warrant.
To the mind of the Court the following circumstances militate
against the maintenance of the writ of preliminary injunction
sought by petitioner:
1. No mayor's permit had been secured. While it is true
that the matter of determining whether there is a pollution
of the environment that requires control if not prohibition
of the operation of a business is essentially addressed to
the then National Pollution Control Commission of the
Ministry of Human Settlements, now the Environmental
Management Bureau of the Department of Environment
and Natural Resources, it must be recognized that the
mayor of a town has as much responsibility to protect its
inhabitants from pollution, and by virture of his police
power, he may deny the application for a permit to
operate a business or otherwise close the same unless
appropriate measures are taken to control and/or avoid
injury to the health of the residents of the community from
the emissions in the operation of the business.
2. The Acting Mayor, in a letter of February 16, 1989,
called the attention of petitioner to the pollution emitted
by the fumes of its plant whose offensive odor "not only
pollute the air in the locality but also affect the health of
the residents in the area," so that petitioner was ordered
to stop its operation until further orders and it was
required to bring the following:
(1) Building permit;
(2) Mayor's permit; and
(3) Region III-Department of Environment and Natural
Resources Anti-Pollution permit. 3
3. This action of the Acting Mayor was in response to the
complaint of the residents of Barangay Guyong, Sta. Maria,
Bulacan, directed to the Provincial Governor through
channels.4 The alleged NBI finding that some of the
signatures in the four-page petition were written by one
person, 5 appears to be true in some instances,
(particularly as among members of the same family), but
on the whole the many signatures appear to be written by
different persons. The certification of the barrio captain of
said barrio that he has not received any complaint on the
matter 6 must be because the complaint was sent directly
to the Governor through the Acting Mayor.
4. The closure order of the Acting Mayor was issued only
after an investigation was made by Marivic Guina who in
her report of December 8, 1988 observed that the fumes
emitted by the plant of petitioner goes directly to the
surrounding houses and that no proper air pollution device
has been installed.7
5. Petitioner failed to produce a building permit from the
municipality of Sta. Maria, but instead presented a building
permit issued by an official of Makati on March 6,1987. 8
6. While petitioner was able to present a temporary permit
to operate by the then National Pollution Control
Commission on December 15, 1987, the permit was good
only up to May 25, 1988.9 Petitioner had not exerted any
effort to extend or validate its permit much less to install
any device to control the pollution and prevent any hazard
to the health of the residents of the community.
All these factors justify the dissolution of the writ of preliminary
injunction by the trial court and the appellate court correctly
upheld the action of the lower court.
Petitioner takes note of the plea of petitioner focusing on its
huge investment in this dollar-earning industry.1wphi1 It must
be stressed however, that concomitant with the need to
promote investment and contribute to the growth of the
Environmental Law
economy is the equally essential imperative of protecting the
health, nay the very lives of the people, from the deleterious
effect of the pollution of the environment.
WHEREFORE, the petition is DENIED, with costs against
petitioner.
SO ORDERED.
RODRIGUEZ vs IAC
Before Us is a petition to review by certiorari 1) respondent
court's decision which sets aside the order of default rendered
by the trial court and 2) respondent court's resolution dated
April 18, 1986 denying petitioners' (plaintiffs-appellees' therein)
motion for extension of time to file motion for reconsideration
of its decision. 1
The antecedent facts of the case are as follows:
Plaintiffs (petitioners herein) filed on December 16, 1980, an
action for abatement of a public nuisance with damages
against defendant (private respondent herein). After being
granted four (4) extensions of time to file an answer, defendant
moved to dismiss the complaint on February 27, 1981 upon the
ground that the lower court has no jurisdiction to hear the
instant case and for lack of cause of action. However, the
motion was denied by the court on April 3, 1981, a copy of
which decision was received by the defendant on April 23,
1981. On May 5, 1981 defendant filed a motion for
reconsideration which motion was denied on July 7, 1981.
Instead of filing an answer, petitioner filed with Us in G.R. No.
57593, Daytona Construction & Development Corporation vs.
Rodriguez, et al. a motion for extension of time to file a petition
for review, but it never filed one, prompting Us to issue a
resolution dated October 5, 1981 informing the parties and the
trial court that no petition for review was filed within the period
that expired on August 15, 1981.
Upon motion of plaintiffs, the court declared the defendant in
default on November 4, 1981, and authorized the plaintiffs to
present evidence ex-parte. Upon learning of the said order, the
defendant on November 9, 1981 filed a motion to set aside the
order of default and a motion to admit answer with

counterclaim which motions were denied by the lower court in
an order dated November 23, 1981.
9
On June 30, 1982, the court a quo rendered judgment for the
plaintiffs and against defendant, its dispositive portion reading
as follows:
WHEREFORE, judgment is hereby rendered as follows:
1. Declaring the operation of the cement hatching plant of
the defendant corporation as a nuisance and ordering its
permanent closure;
2. Ordering the defendant to pay plaintiff Ernesto
Rodriguez, Jr. the amount of P250,000.00 as moral
damages and the amount of P5,000.00 as nominal
damages;
3. Ordering the defendant to pay plaintiff Ernesto LL.
Rodriguez III the amount of P200,000.00 as actual
damages, the amount of P500,000.00 as moral damages
and the amount of P5,000.00 as nominal damages;
4. Ordering the defendant to pay plaintiff SACHA del
Rosario the amount of P20,000.00 as actual damages, the
amount of P50,000.00 as moral damages and the amount
of P5,000.00 as nominal damages;
5. Ordering the defendant to pay plaintiff Zenaida Z.
Rodriguez the amount of P100,000.00 as actual damages,
the amount of P100,000.00 as moral damages and the
amount of P5,000.00 as nominal damages; and
6. Ordering the defendant to pay the plaintiffs the amount
of P50,000.00 as attorney's fees, plus the costs of suit.
SO ORDERED. (pp. 63-64, Record on Appeal)
In an order dated July 9, 1982, the trial court upon motion of
plaintiffs granted execution pending appeal it indeed appearing
as alleged in the motion that the continued operation of the
cement batching plant of the defendant poses a "great menace
to the neighborhood, both in point of health and property."
On July 23, 1982, defendant filed a petition for relief which was
however denied by the lower court. On July 29, 1982, defendant
filed a petition for injunction with the Intermediate Appellate
Court which found the petition unmeritorious. 2 The appellate
court promulgated on October 5, 1983, a decision denying due
course to defendant's petition.
Its motion for reconsideration having been denied by the
Appellate Court, defendant went on appeal by certiorari to the
Supreme Court (G.R. No. 66097) which, after the submission of
plaintiffs' comment and defendant's reply thereto, denied its
petition for lack of merit.
The petition for injunction having been denied by both the IAC
and this Court, defendant pursued the remedy of appeal in
respondent IAC, assigning the following errors.
I. THE TRIAL COURT ERRED WHEN IT DECLARED
APPELLANT IN DEFAULT DESPITE THE FACT THAT ITS
FAILURE TO FILE ITS ANSWER ON TIME WAS DUE SOLELY
TO THE NEGLIGENCE OF ITS COUNSEL AND DESPITE THE
FACT THAT THE MOTION TO DISMISS THAT IT HAD FILED
COULD HAVE VERY WELL STOOD AS THE ANSWER OF THE
APPELLANT.
II. THE TRIAL COURT ERRED WHEN IT ASSUMED
JURISDICTION OVER THE CASE AND WHEN IT RENDERED
JUDGMENT BY DEFAULT AGAINST THE APPELLANT ON
GROUNDS AND/OR BASIS NOT ALLEGED IN THE
COMPLAINT FILED AGAINST THE APPELLANT.
III. THE TRIAL COURT ERRED WHEN IT DID NOT ALLOW
RELIEF FROM JUDGMENT IN THE FACE OF THE REASONS
PRESENTED TO IT AS BASIS FOR SUCH RELIEF.
IV. THE TRIAL COURT ERRED WHEN DESPITE THE APPEAL
HAVING BEEN DULY PERFECTED, IT DETAINED THE CASE
WITH IT AND THEREAFTER, ISSUED AN ALIAS WRIT OF
EXECUTION PENDING APPEAL WITHOUT APPROPRIATE
PRIOR NOTICE TO THE APPELLANT. (pp. 1-2, Appellant's
Brief)
On March 21, 1986, respondent court promulgated its decision,
the decretal portion of which is as follows:
WHEREFORE, the Decision appealed from is hereby
reversed and set aside and another one entered,
remanding the case to the court of origin for further
Environmental Law
proceedings and thereafter, to render judgment
accordingly.
No pronouncement as to costs.
Notice of respondent Court's decision was received by plaintiffs-
appellees thru counsel on April 3, 1986. Plaintiffs filed on April
15, 1986 a motion for extension of 30 days from April 18, 1986
or up to May 18, 1986 to file a motion for reconsideration.
However, on May 10, 1986, they filed a 24-page motion for
reconsideration.
Meanwhile, on April 23, 1986, defendant's opposition to the
motion for extension and counter-motion to enter final
judgment were received by plaintiffs. Plaintiffs countered with a
reply filed April 29, 1986. (Annex "C-2") Plaintiffs' counsel was
surprised to receive on April 24, 1986, respondent Court's
resolution dated April 18, 1986, denying the motion for
extension. Plaintiffs requested respondent Court to treat their
aforesaid reply filed on April 29, 1986 as a motion for
reconsideration of the said resolution of April 18, 1986,
received by them on April 21, 1986, the request being
contained in their opposition dated May 22, 1986, to defendant-
appellant's motion to strike out the said opposition attached
thereto as Annex C-3 " Neither the motion for reconsideration
(converted from the reply filed on April 29, 1986) nor the
motion for reconsideration of the decision itself was acted upon
by respondent court.
Hence this petition to review, petitioners alleging that
"Respondent court's challenged resolution purporting to deny
appellees' motion for extension of time to file a motion for
reconsideration is a nullity because the decision in Habaluyas v.
Japson case, 3 solely relied on by the said resolution has been
made by the Supreme Court to operate prospectively and
thereby rendered inapplicable to parties situated as petitioners
are, in order precisely to spare them from unfair and unjust
deprivation of their right to appeal."
In Our resolution, promulgated May 30, 1986 in the Habaluyas
case itself (G.R. No. 70895), We set aside the original judgment
therein, thus:
However, the law and the Rules of Court do not expressly
prohibit the filing of a motion for extension of time to file a
motion for reconsideration of a final order or judgment.
In the case of Gibbs vs. Court of First Instance (80 Phil.
160), the Court dismissed the petition for certiorari and

ruled that the failure of defendant's attorney to file the
10petition to set aside the judgment within the reglementary
period was due to excusable neglect, and, consequently,
the record on appeal was allowed. The Court did not rule
that the motion for extension of time to file a motion for
new trial or reconsideration could not be granted.
In the case of Roque vs. Gunigundo (Administrative Case
No. 1684, March 30, 1979, 89 SCRA 178), a division of the
Court cited the Gibbs decision to support a statement that
a motion to extend the reglementary period for filing the
motion for reconsideration is not authorized or is not in
order.
The Intermediate Appellate Court 4 is sharply divided on
this issue. Appeals have been dismissed on the basis of
the original decision in this case.
After considering the able arguments of counsels for
petitioners and respondents, the Court resolved that
the interest of justice would be better served if
the ruling in the original decision were applied
prospectively from the time herein stated The reason is
that it would be unfair to deprive parties of their fight to
appeal simply because they availed themselves of a
procedure which was not expressly prohibited or allowed
by the law or the Rules. ... (pp. 3-4; Resolution dated May
30, 1986 in G.R. No. 70895; emphasis supplied)
This Court further elucidated:
1). Beginning one month after the promulgation of this
Resolution, the rule shall be strictly enforced that no
motion for extension of time to file a motion petition for
new trial or reconsideration may be filed with the
Metropolitan or Municipal Trial Courts, the Regional Trial
Courts, and the Intermediate Appellate Court. Such a
motion may be filed only in cases pending with the
Supreme Court as the court of last resort, which may in its
sound discretion either grant or deny the extension
requested. (p. 4, emphasis supplied)
The above new rules are made effective no earlier than June
30, 1986. In the instant case, respondent Court's decision was
received by plaintiffs on April 3, 1986. Plaintiffs or petitioners
herein filed on April 15, 1986 a motion for extension of 30 days
from April 18, 1986 or up to May 18, 1986 to file a motion for
reconsideration. On May 10, 1986, plaintiffs filed their motion
for reconsideration. Plaintiffs' motion for extension of time was
not intended for delay but upon showing of good cause, to wit:
"for lack of material time due to heavy pressure of work on the
part of petitioners' counsel presently taking charge thereof,
what is more the counsel handling this case was doing so for
the first time in substitution of Atty. Emmanuel Pelaez, who was
recently appointed Philippine Ambassador to the U.S"
It is clear therefore that petitioners' motion was based on good
cause and was filed opportunely making the act of respondent
Court unwarranted in denying petitioners' motion for extension
of time to file its motion for reconsideration.
Another important issue raised by the petitioners is that the
"subject decision which purports to set aside the order of
default rendered by the trial court is a nullity because
respondent court arbitrarily ignored in grave abuse of discretion
amounting to lack of jurisdiction 1) the conclusive effect of the
trial court's final and unappealed order denying defendant's
motion to set aside the default order," and 2) the res
judicata effect of the appellate court's final judgment in the
injunction case aforementioned upholding the trial court's order
granting execution of its Judgment pending appeal and,
necessarily, the default order as well 3) the law of the case
effect of the appellate court's express ruling in the said
injunction case sustaining the default order.
Petitioners' contentions merit our consideration.
It has been Our consistent ruling that a default order, being
interlocutory, is not appealable but an order denying a motion
or petition to set aside an order of default is not merely
interlocutory but final and therefore immediately appealable. 5
Since the trial court's order of November 13, 1981, denying
defendant's motion to set aside the order of default was
appealable but was not appealed by defendant, the necessary
conclusion is that the default order became final. Clearly
therefore, respondent Court committed a grave abuse of
discretion in disregarding the finality of the default order.
The validity and finality of the default order was upheld by the
judgment of the Appellate Court in the injunction case (which
passed upon the merits of the issuance of an order of execution
pending appeal) by virtue of the principle of res judicata and
the doctrine re the law of the case.
There is no question that there were good reasons for the trial
court to issue the order of execution pending appeal. The order
categorically stated that there was a need for the closure and
Environmental Law
stoppage of the operation of defendant's (Daytona
Construction) cement batching plant because it posed "a great
menace to the neighborhood both in point of health and
property." The trial court thus stated:
From the uncontroverted evidence presented by the
plaintiffs, there is hardly any question that the cement
dust coming from the batching plant of the defendant
corporation is injurious to the health of the plaintiffs and
other residents in the area. The noise, the vibration, the
smoke and the odor generated by the day and night
operation of the plant must indeed be causing them
serious discomfort and untold miseries. Its operation
therefore violates certain rights of the plaintiffs and causes
them damage. It is thus a nuisance and its abatement
justified. (Decision, p. 5; p. 90, Rollo)
after taking into consideration evidence presented by plaintiffs
(petitioners herein) as follows:
The evidence shows that the defendant is a domestic
corporation duly organized and existing under the laws of
the Philippines with business address of 252 Don Mariano
Marcos Avenue (actually South Zuzuarregui Avenue),
Quezon City. It was issued by the Quezon City government
a business permit (Exhibit B) for the manufacture of road
and building concrete materials such as concrete
aggregates, with cement batching plant. Among the
conditions set forth in the permit are that the said batching
plant shall (1) institute measures to prevent dust emission
during the manual charging of cement from bags to the
receiving hopper of the bucket elevator of the batching
plant; (2) remove all sediment deposit in the settling of
tank for process water and proper maintenance should be
observed at all times. While the original permit issued to
the defendant stated that its operation at the place shall
"not (be) beyond Dec. 31, 1979" (Exhibit B-2), it was
somehow allowed to operate way beyond said period.
Plaintiff Ernesto LL. Rodriguez Ill testified that he has three
parcels of residential lots adjacent to the Daytona
compound. He informed the Court that his property, with
an area of 8,892 square meters has been over-run by
effluence from the cement batching plant of the
defendant. The sediment settled on the lots and all forms
of vegetation have died as a result, and the land
tremendously diminished in value. His three lots are
located in a prime residential zone and each square meter
in the area is easily valued at P500.00. While he would like
to sell at least a part of his property, he finds no buyer

because of its condition. It would cost him no less than
11P250,000.00 to be able to repair the damage done to his
property, and since its present condition has been existing
during the five years, he claimed that the interest on his
loss would be about P5,000.00. He has agreed to his
counsel's fee of P200,000.00. Zenaida Rodriguez testified
that she owns a lot with an area of 1,500 square meters.
Two thirds of this area has been damaged by the cement
dust, emanating from the defendant's cement batching
plant. The continous flow of cement dust into her property
affected her deep well, their source of drinking water, and
most of their fruit-bearing and ornamental trees dried up.
She also said that she has had sleepless nights and
became nervous as a result of the batching plant
operation. Even her previous pedigreed poodles have been
afflicted by all sorts of illnesses, many of them dying in the
process. She claimed to have sustained damages
amounting to P370,000.00.
SACHA del Rosario testified that her house has to close its
windows most of the time because of the dust pollution
and her precious plants have been destroyed by the
cement powder coming from the constant traffic of trucks
and other vehicles carrying the product of the batching
plant passing through her area. She claims damages
amounting to more than P100,000.00.
A chemical engineer, Alexander Cruz, said that the
effluence deposited on the properties of Ernesto LL.
Rodriguez III and Zenaida Rodriguez has a very high PH
11.8, and the soil is highly alkaline and cannot support
plant life; that pollution coming from the batching plant
can cause stomach disorder and skin problems; that the
place of Ernesto LL. Rodriguez III is bare of grass and the
trees are dying, (Exhibits J, J-1 and J-2 and that there is also
a high degree of calcium on the property in question.
Witness Guido L. Quiban a civil engineer, testified that on
the basis of his examination of the property of Rodriguez I I
I affected by the pollution, it would cost at least
P250,000.00 for the excavation filling, concreting of canal
and rental of equipment to repair it or restore it to its
status quo ante.
Lawyer Ernesto R. Rodriguez, Jr., the 70-year old father of
both Ernesto Ill and Zenaida Z. Rodriguez, submitted a
medical certificate that he had recently been taken ill with
acute bronchial asthma, hypertension and atherosclerotic
heart disease. (Exhibits L, L-1 to L-4). His physician, a
specialist graduate from the University of London and
Environmental Law
connected with various hospitals in Manila, advised him (Decision in Injunction Case, AC-G.R. No. 14602-SP, pp. 10-
against exposure to environmental allegens, specifically 14)
cement dust and pollution. He also submitted as exhibits
various newspaper clippings (Exhibit M and excerpts from
Anent the default order, the appellate court in the injunction
a book (Exhibits N and N-1 showing that pollution can
case said:
irritate the eye, sear lungs and destroy vegetation, raise
blood pressure, increase cholesterol levels, interfere with
sleep, cause ulcer, trigger heart attacks and the like; that From the foregoing, it appears that petitioner was recreant
it is the common denominator of respiratory diseases, in failing to file an answer after respondent judge denied
especially asthma chronic bronchitis, bronchial asthma and its motion to dismiss the complaint. The motion to dismiss
emphysema and that polluted air can develop was denied in the order of the lower court under date of
abnormalities in lung function. April 3, 1981, a copy of which was received by petitioner
on April 23, 1981. A motion for reconsideration of the order
of denial filed by petitioner on May 7, 1981 was denied by
Dr. Raul I. del Rosario, a neighboring physician, testified
said court on July 7, 1981. Instead of filing an answer
that he had treated several patients who traced their
promptly, petitioner filed with the Supreme Court a motion
sickness to the pollution caused by defendant Daytona
for extension of time to file a petition for review, but it
batching plant. He said that cement dust produces
never filed one, prompting the Supreme Court to issue
broncho-pulmonary obstructive diseases, broncho fibriotic
a resolution dated October 5, 1981 informing the parties
lesions which may produce cardio pulmonary
that no petition for review was filed within the period that
complications, and the people living in the neighborhood
expired on August 15, 1981. Inspite of the Supreme Court's
of the batching plant are the most susceptible to these
resolution, petitioner still failed to file any answer or
diseases. He reported many cases of bronchial asthma in
pleading to arrest the running of the prescriptive period. It
both children and adult who live in the vicinity of the
was only on July 23, 1982, when petitioner filed its Petition
cement batching plant and these cases have been
for Relief which was nine (9) months after the Supreme
intermittently admitted and discharged from the Quirino
Court's resolution was issued. Petitioner's assertion in its
Labor Hospital where he presently works as a resident
Petition for Relief that the failure to file the answer was
physician. He had intended to open a medical clinic at his
caused by "the unforseen sickness of its corporate
residence but he could not do so because the washings
secretary who has custody of the records necessary for the
from the cement mixers are dumped on the access road in
preparation of its defense" cannot be taken without much
front of his house and when these washings are dried up
doubt and hesitation. Petitioner did not even point out who
they pollute the neighborhood, rendering his intended
was the supposed corporate secretary or explain why the
medical clinic unfit and impractical for the treatment of
records were in the possession of the corporate secretary
patients, particularly those suffering from respiratory
instead of the counsel handling the case. (Decision in
ailments.
Injunction case, p. 16; emphasis supplied)
Another lawyer, Eliseo Alampay, Jr., who likewise resides a
With reference to defendant's allegation that it thought that the
few meters away from the site of the Daytona batching
period within which to answer (after its motion to dismiss had
plant, testified that the said plant is certainly injurious to
been denied) had been suspended by its having filed a petition
the health; that the cement dust are agents of lung
for review before the Supreme Court, same is without merit.
ailments, impair the growth of plants and even kill the
The circumstances of the case point to a deliberate desire to
birds in their cages; that it is a demonstrable nuisance
delay: the corporation, governed as it is by knowledgeable
because its uncontrolled engine noise and night long
business executives, should have taken steps to prevent its
pounding prevent the neighborhood from being able to
being declared in default. The corporation waited six (6)
sleep soundly and peacefully. He told the court that there
months before verifying the status of the case: in the meantime
was a time when he felt like organizing the whole
it had been declared in default, a judgment by default had been
neighborhood into a demolition team to forcibly dismantle
rendered against it, execution was already pending before it
the entire Daytona plant because "the authorities
woke up to file the case at hand.
concerned apparently have chosen to close their eyes and
leave us to our miserable plight." He said that the homes
in the community all look dirty and dusty because of the We agree with Justice Luis A. Javellana in his concurring opinion
pollution that the batching plant of the defendant causes. in the injunction case before the appellate court, thus:

Petitioner's conduct here appears to me to be tainted with
12fraud and intended simply to delay the disposition of the
case. When its motion to dismiss the complaint was
denied, and its motion for reconsideration of that denial
was, Unwise denied, it manifested its intention to elevate
these orders to the Supreme Court on a petition for review.
Yet, it did nothing to this end. The purpose of the ploy is
obvious. Once it had announced its intention to go to the
Supreme Court, it effectively suspended the proceedings in
the trial court, or, at least, that was the effect. This
enabled it to continue with its operations and it would
have done so indefinitely if it had not been declared in-
default and private respondents allowed to present their
evidence. It is quite apparent that petitioner really had no
Environmental Law
intention of elevating the case to the Supreme Court WHEREFORE, the assailed decision and resolution are hereby
otherwise, it would not have allowed the extended period SET ASIDE, and a new judgment is hereby rendered
given to it by the Supreme Court to lapse without filing the REINSTATING the decision of the trial court with the
petition. Or, if it was in good faith, there it should have modification that all awards for nominal damages are hereby
informed the trial court that it was no longer pursuing its eliminated. Costs against private respondent.
remedy in the Supreme Court after it had decided that it is
no longer availing of such remedy. Instead, it concealed
SO ORDERED.
this fact from the trial court and the adverse party, and
allowed matters to take their course. It was not until it
received the adverse decision that it frantically sought to
set things right I do not think that petitioner deserves any
consideration for trifling with the administration of
justice. (pp. 3-4; emphasis supplied)