THIRD DIVISION
|
OFFICE OF THE OMBUDSMAN,
Petitioner, - versus - Engr. ALFONSO P. ESPIRITU,
Respondent. |
|
G.R. No. 174826 Present: AUSTRIA-MARTINEZ, J., Acting Chairperson, TINGA,* CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: April 8, 2008 |
x- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
CHICO-NAZARIO, J.:
Before Us is a Petition for Review on
Certiorari under Rule 45 of the 1997
Rules of Civil Procedure which seeks to set aside the Decision[1] of
the Court of Appeals in CA-G.R. SP No. 85871 dated 5 January 2006 which annulled
and set aside the Decision[2] dated
16 January 2003 of petitioner Office of the Ombudsman finding respondent
Alfonso P. Espiritu guilty of Conduct Grossly Prejudicial to the Best Interest
of the Service, and its Resolution[3]
dated 21 September 2006 denying petitioner’s motion for reconsideration.
The facts are not disputed.
Complainant Archie L. Huevos (Huevos)
is a licensed building contractor doing business under the style A.H.
Construction and General Services (A.H. Construction) while respondent is the
City Engineer and Building Official of Marikina City.
After public bidding, a contract
agreement[4]
was executed on
After some adjustments with the
plans, the DOH-ARMC applied for a demolition permit with the Office of the City
Engineer which is headed by respondent. On
Subsequently, on
In a letter dated 7 September 2000,
respondent informed Antonio Lopez, Undersecretary of the DOH, that he did not
act on the application for the building permit citing the following reasons:
first, that four years ago A.H. Construction had built a structure in the same
hospital without the requisite building permit and even when the structure
violated the National Building Code or Presidential Decree No. 1096; second,
the said illegal structure severely affected the road widening project of the
city government and solicited numerous and continuous complaints from motorists
and pedestrians, for which reason, it was ordered demolished but A.H.
Construction did not immediately comply with said order; third, the master plan
for the construction project includes a waste water plant which will obstruct
the roadway, and an incinerator which is not allowed in Marikina City; and fourth,
the numerous violations committed by A.H. Construction caused it to be
blacklisted by the city government.
A.H. Construction appealed the action
of respondent before the Secretary of the Department of Public Works and
Highways (DPWH). In a Decision dated
WHEREFORE, in the light of the foregoing discussion, and finding merit on the herein appeal, ARMC/Appellant is hereby advised to refile its application for Building Permit for the subject proposed 3-storey Dormitory and Support services building with the Office of the Building Official of Marikina, which office, upon Applicant’s full compliance with all the requirements, shall, within the period prescribed by the National Building Code and its IRR, issue the Building Permit applied for.[5] (Emphasis supplied.)
On
In the meantime, upon learning of the
decision of the DPWH Secretary, respondent sought its reconsideration. In a letter dated
Despite being notified by the DOH-ARMC
to submit its renewed business permit license to the City Engineer’s Office,
A.H. Construction failed to do so. On
In compliance with the order of
petitioner, respondent filed a counter-affidavit[8] denying
Huevos’ allegations. He claimed that the
denial of the application for the issuance of the building permit was with
sufficient grounds and was not tainted with grave abuse of discretion.
After the parties submitted their
respective memoranda, petitioner rendered its Decision dated
WHEREFORE, above premises
considered, this Office finds respondent ALFONSO P. ESPIRITU guilty as charged
and is hereby meted the penalty of SIX (6) MONTHS and ONE (1) DAY SUSPENSION
WITHOUT PAY pursuant to Section 22, par. 6 of Executive Order No. 292 otherwise
known as the Administrative Code of 1987.
The Mayor,
The petitioner explained its Decision
in this manner:
From
the evidence presented by both parties, this Office believes that a substantial
ground exists to hold respondent Espiritu administratively liable.
The alleged “blacklisting” of the
complainant’s construction company by the City Mayor of Marikina is not a
sufficient reason to deny the issuance of the building permit. x x x.
x x x x
Thus, the act of the respondent in
continuously denying the application for building permit sought by the
complainant even after having been informed of the Decision of Secretary
Datumanong is a showing of his manifest partiality against the applicant. It must be pointed out that the existence of
the said DPWH Order for the respondent to issue the building permit left him no
choice but to comply since the issuance becomes a mere ministerial act. In fact, under Section 307 of the National
Building Code of the
x x x x
Even assuming that the reasons cited
by the respondent for denying the permit are true, the same are not ground/s
for the non-issuance thereof under Section 306 of the National Building Code.
Apparently, by shifting from one
reason to another in order to deny the permit only shows the bias of the
respondent towards the complainant.
Also, the respondent had clearly
shown his arbitrariness by whimsically denying the application for building
permit and yet a demolition permit for the old administration building to be
affected by the proposed building had already been secured. It is not disputed that the old
administration building was demolished on
Respondent
filed a Motion for Reconsideration from the Decision which petitioner denied in
an Order dated
Aggrieved,
respondent appealed to the Court of Appeals via
a Petition for Review praying that the petitioner’s Decision and Order
dated 16 January 2003 and 21 January 2004, respectively, be annulled and set
aside.
On
On
In
its Decision, the Court of Appeals ruled inter
alia that it did not find substantial evidence to hold respondent guilty of
conduct grossly prejudicial to the best interest of the service. It ratiocinated:
The issuance of building permits are subject to laws and regulations that have grown complex. While the National Building Code and its implementing rules primarily govern such matter, there are now provisions under the Local Government Code (RA 7160) affecting it. A discussion on this dynamics is relevant to this case for the main defense of petitioner is that he was merely enforcing the laws and rules governing issuance of building permits when he refused to act on the application of DOH-ARMC.
x x x x
Hence, in the processing of applications for building permit, the City Engineer cum Building Official will have to enforce the requirements of the National Building Code along with local policies, as petitioner did in this case.
Petitioner twice refused to act on
the application of DOH-ARMC for a building permit. On the first occasion, petitioner cited as
reasons for his inaction the past infractions of respondent, the latter’s
blacklisting with the City Government of Marikina, and the inclusion in the
master plan of a waste treatment facility and incinerator, which are not allowed
in
Evidently, on both occasions, petitioner was merely enforcing local policies, along with the requirements of the National Building Code, in the matter of issuing building permits. During the first instance that he refused to act on the application, the Marikina City Government had raised objections to some aspects of the construction project of respondent which, although later found to be baseless by the DPWH and the agency a quo, respectively, were genuine issues at that time. It was only to be expected that petitioner, as local Civil Engineer cum Building Official, refused to act on the application for building permit in seeming deference to the sentiment of his city government about the questioned project. It would have certainly seemed irregular had petitioner otherwise issued a building permit for a project that was being objected to by his employer, the Marikina City Government. Thus, on this occasion that petitioner refused to act on the application for building permit, the Court perceives no conduct prejudicial to the best interest of the service. On the contrary, petitioner exhibited prudence and loyalty by choosing not to act on the application for building permit but to await the outcome of the controversy between the City Government of Marikina and the project proponent and contractor.
On the second occasion that petitioner refused to act on the refiled application for building permit, several significant facts must be borne in mind. First is that, while the DPWH directed petitioner to issue the building permit, this was made subject to the condition that DOH-ARMC comply with all the requirements. Second, when DOH-ARMC refiled its application, it was found to lack the business permit of respondent, a deficiency that existed only when the second application was filed. Thus, when petitioner again refused to act on the application because of that deficiency, he could have hardly been flouting the final order of the DPWH. He could not have merely been shifting from one reason to another just to withhold the permit for that deficiency existed only then.[15]
Not
satisfied with the Decision of the Court of Appeals, petitioner is now before
us via a Petition for Review on Certiorari arguing:
THE FINDINGS OF THE OFFICE OF THE OMBUDSMAN ON THE ADMINISTRATIVE LIABILITY OF (RESPONDENT), AS WELL AS THE PENALTY IMPOSED, ARE IN ACCORDANCE WITH LAW AND ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.
The issue is: whether or not the non-issuance of the building
permit applied for constituted Conduct Prejudicial to the Best Interest of the
Service.
To
our mind, in order to resolve this issue, we must answer the question: Were all
the requirements for the issuance of the building permit complied with?
We
rule in the negative.
The
issuance of building permits is governed primarily by the National Building
Code[16]
and its Revised Implementing Rules and Regulations (IRR). Section 301 of the National Building Code
reads:
No person, firm or corporation, including any agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure or cause the same to be done without first obtaining a building permit therefor from the Building Official assigned in the place where the subject building is located or the building work is to be done.
The
pertinent provisions in the IRR are as follows:
SECTION 302. Application for Permits
1. Any person desiring to obtain a building permit and any ancillary/accessory permit/s together with a Building Permit shall file application/s therefor on the prescribed application forms.
x x x x
12. Clearances from Other Agencies
x x x x
b. Whenever necessary, written clearance shall be obtained from the various authorities exercising and enforcing regulatory functions affecting buildings/structures. x x x Such authorities who are expected to enforce their own regulations are:
x x x x
iv. Local Government Unit (LGU)
Under
the old IRR, provisions of similar import were also present.
RULE I – BUILDING PERMIT APPLICATIONS
x x x x
3. Requirements:
Any person desiring to obtain a
building permit shall file an application therefor in writing and on the
prescribed form.
x x x x
3.4 Whenever
necessary, written certifications/clearances shall be obtained from the various
government authorities exercising regulatory functions affecting buildings and
other related structures, such as the Human Settlements Regulatory Commission x
x x.
From
the foregoing provisions, it is clear, however, that the requirements to be
complied with for the issuance of building permits are not limited to those
mentioned in the National Building Code.
As can be gleaned therefrom, clearances from various government
authorities exercising and enforcing regulatory functions affecting
buildings/structures, like local government units, may be required before a
building permit may be issued. Thus, as
long as the additional requirements being asked for by these government
authorities are reasonable, we rule that the applicant must comply and submit
these other requirements. Failure to do
so is enough justification for the denial of the application for the issuance
of the building permit.
Under
the National Building Code, the Building Official is appointed/designated by
the DPWH Secretary.[17] Under the Local Government Code of 1991, the
City/Municipal Engineer, who is appointed by the City/Municipal Mayor, also
acts as the Local Building Official.[18] As such, he exercises powers and performs
duties and functions as may be prescribed by law and ordinance.[19]
In the case at bar, respondent twice
refused to grant the building permit applied for by the DOH-ARMC because he asked
for compliance with the requirements of both the National Building Code and the
City Government of Marikina. In the
first instance, respondent did not grant the application for grounds which the
DPWH Secretary found to be inadequate for the denial of the application. With this ruling by the DPWH Secretary, the
latter directed the re-filing of the application subject to full compliance with
all the requirements. This,
notwithstanding, respondent did not act on the re-filed application for lack of
the contractor’s business permit which is a requirement to be complied with in
the City of Marikina. The Order of the
DPWH does not prevent a local government unit from imposing additional
requirements in accordance with its policies.
The requirements for applications for building permit in
BUILDING PERMIT
No person, firm or corporation, agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure (Chapter 3, Section 310 of PD 1096 or National Building Code)
REQUIREMENTS
1. Applications for:
a.) Building Permit
b.) Electrical Permit
c.) Sanitary/Plumbing Permit
d.) Excavation Permit
e.) Mechanical Permit
f.) Signboard/Billboard
g.) Fencing Permit
h.) Demolition Permit
5 set(s) of Building Plans/Blueprints
Locational Clearance
Homeowner’s Association Clearance
Fire Safety Endorsement – Fire Dept – City Hall
Contractor’s Business Permit/Affidavit of Undertaking.[20] (Underscoring supplied).
There is no dispute that not all of the
requirements asked for by the City of
Petitioner
contends that respondent neither informed Huevos about the status of the
re-filed application nor notified him as to why there was no action on the
same. It further contends that it was
only after Huevos filed criminal and administrative cases against respondent
that the latter presented new grounds for the denial of Huevos’s application.
Petitioner’s
contentions are untenable. Huevos was
informed of the status of the application through the DOH-ARMC because it was the
latter that re-filed the application. In
a letter dated
Huevos’s
non-submission of his renewed business permit is a valid reason for respondent
not to grant the building permit applied for.
The “agony of waiting for the result” that Huevos supposedly experienced
was of his own doing. Such agony could
have been prevented if he only did what was being asked of him. This, he refused to do.
In an administrative proceeding, the quantum of
proof required for a finding of guilt is only substantial
evidence, meaning that amount of relevant evidence
which a reasonable mind might accept as adequate to justify a conclusion.[21] The complainant has the burden of proving by substantial
evidence the allegations in his complaint.[22] It is also settled that when there is substantial
evidence in support of the Ombudsman's decision, that
decision will not be overturned.[23] In the case at bar, Huevos was not able to substantiate
his allegations. Considering that
petitioner’s Decision is based on Huevos’s evidence, said decision has no leg
to stand on and must perforce be overturned.
In all, we find no substantial
evidence to hold respondent guilty of Conduct Grossly Prejudicial to the Best
Interest of the Service. By doing what
he did, respondent merely performed his duty faithfully. His actions were justified under the
circumstances obtaining. The Court of
Appeals decided correctly when it annulled and set aside petitioner’s Decision
and ordered the dismissal of the complaint against respondent.
WHEREFORE, all
the foregoing considered, the petition is DENIED. The decision of the Court of Appeals in CA-G.R.
SP No. 85871 dated
SO ORDERED.
|
|
MINITA
V. CHICO-NAZARIO
Associate Justice |
WE
CONCUR:
Associate Justice
Acting Chairperson
|
DANTE O.
TINGA
Associate Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice |
|
|
|
RUBEN T. REYES
Associate Justice
|
|
MA. ALICIA
AUSTRIA-MARTINEZ
Associate Justice Acting Chairperson, Third Division |
Pursuant to Article VIII,
Section 13 of the Constitution, and the Division Acting Chairperson’s Attestation,
it is hereby certified that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
|
|
REYNATO S. PUNO
Chief Justice |
[1] Penned by Associate Justice Godardo A. Jacinto with Associate Justices Juan Q. Enriquez, Jr. and Vicente Q. Roxas, concurring; CA rollo, pp. 196-214.
[2] Rollo, pp. 53-66.
[3]
[4] CA rollo, pp. 62-63.
[5] Rollo, p. 33.
[6] CA rollo, p. 61.
[7]
[8]
[9] Rollo, p. 65.
[10]
[11]
[12]
[13]
[14]
[15]
[16] Presidential Decree No. 1096.
[17] Section 205.
[18] Section 477 (a).
[19] Section 477 (c).
[20] Rollo, pp. 46-47.
[21] Commission
on Audit v. Hinampas, G.R. No. 158672,
[22] Jugueta
v. Estacio, A.M. No. CA-04-17-P,
[23] Morong Water District v. Office of the
Deputy Ombudsman, 385
Phil. 44, 55 (2000).