[ G.R. No. L-3887. August 21, 1950 ] 87 Phil. 180
EN BANC
[ G.R. No. L-3887. August 21, 1950 ]
FELIPE R. HIPOLITO, PETITIONER, VS. THE CITY OF MANILA AND ALEJO AQUINO, AS CITY ENGINEER, RESPONDENTS. D E C I S I O N
BENGZON, J.:
This is an action to compel the respondents to issue a building permit in favor of Felipe R. Hipolito.
The petitioner and his wife are the registered owners of a parcel of land situated at the corner of Invernes and Rennaissance streets, Santa Ana, Manila. On March 22, 1950, petitioner applied to the respondent Alejo Aquino, as City Engineer, for permission to erect a strong material residential building on his above-mentioned lot. For more than forty days, the respondent took no action, wherefore, petitioner wrote him a letter manifesting his readiness to pay the fee and to comply with existing ordinances governing the issuance of building permits.
On May 29, 1950, the respondent engineer answered declining to issue the permit in view of the 2nd indorsement of the National Urban Planning Commission, which reads partly as follows:
* * * * * * *
“According to the Adopted Plan for Sta. Ana, Invernes and Rennaissance streets will be widened to the respective widths of 22-m. and 10 m. Since it is the policy of the Commission to be fair with owners of abutting properties, the widening is generally taken equally on both sides of the street, thereby affecting the proposed building of Atty. Hipolito by 5.00 m. along Invernes St. and by 1.00 m. along Rennaissance St., as shown in the attached plan. In this connection, it may be stated that Invernes St. will be an inter neighborhood street that will connect directly the district of Sta. Ana to Pandacan. * * *”
The respondent Engineer plainly implied that Hipolito’s building should observe the new street line indicated by the Commission.
The petitioner, who is a lawyer, replied that the said Commission and its plans could not legally affect the construction of residential buildings, like his own, that are not subsidized in whole or in part with public funds, citing section 6 of Executive Order No. 98, s. 1946, which partly reads:
“Sec. 6. Legal status of general plans.—Whenever the Commission shall have adopted a General Plan, amendment, extension or addition thereto of any urban area or any part thereof, then and thence-forth no street, park or other public way, ground, place, or space; no public building or structure, including residential buildings subsidized in whole or part by public funds or assistance; * * * shall be constructed or authorized in such urban area until and unless the location and extent thereof conform to said general plan or have been submitted and approved by the Commission, * * *.”
The respondent City Engineer saw differently, and refused to issue the permit, stating:
“This Office is of the opinion that constructions on streets affected by the adopted plans of the N.U.P.C. will have to conform thereto unless exempted by previous municipal legislation. Notwithstanding decisions of the court of first instance to the contrary, this Office will continue with this policy until the Supreme Court rules otherwise.” (Italics ours.)
The defense to this petition is planted on the opinion that unless Hipolito’s building conforms to the new street line fixed by the National Urban Planning Commission, the building permit will not be issued.
It is not claimed that the City of Manila has expropriated, or desires to expropriate, that portion of petitioner’s lot between the existing street line and the new street line adopted by the National Urban Planning Commission. No law or ordinance is cited requiring private landowners in Manila to conform to the new street line marked by the National Urban Planning Commission, except the section above quoted. And the question relates only to its interpretation.
As we read it, that section in referring to structures to be constructed in any urban area for which the Commission has adopted a General Plan, applies only to “residential buildings subsidized in whole or in part by public funds or assistance.” The residential building which petitioner intends to construct may not be so classified, because he asserts, without contradiction, that his proposed construction will be financed wholly by himself, not with public funds or assistance, therefore, the excuse given by respondent is not valid.
Consequently, there being no allegation that petitioner had not complied with all the requisites of the Revised Ordinances of the City of Manila, and it being unquestioned that defendant’s refusal would amount to denying unlawfully to petitioner the right to beneficial use of his property, the writ of mandamus should be granted. The City has not expropriated the strip of petitioner’s land affected by the proposed widening of Inverness street, and inasmuch as there is no legislative authority to establish a building line, the denial of this permit would amount to the taking of private property for public use under the power of eminent domain without following the procedure prescribed for the exercise of such power. (See In re Opinion of the Justices, 128 A., 181, 12 Me. 501; Grove Hall Savings Bank vs. Town of Dedham, 187 N. E. 182, 284 Mass. 92; Curtis vs. City of Boston, 142 N. E. 95, 247 Mass. 417.)
Wherefore, respondents are required to issue the building permit upon payment of the fees. No costs.
Moran, C.J., Ozaeta, Tuason, Montemayor, and Reyes, JJ., concur.