[ G.R. No. L-3602. January 30, 1953 ] 92 Phil. 545
EN BANC
[ G.R. No. L-3602. January 30, 1953 ]
WONG SIU TONG, PLAINTIFF AND APPELLEE, VS. ALEJO AQUINO, DEFENDANT AND APPELLANT. D E C I S I O N
REYES, J.:
The Revised Ordinances of the City of Manila forbid the construction of any building without the required permit and provides that—
“When the work for which any building permit was issued is not being performed in accordance with the plans and specifications on file, it shall be the duty of the engineer to notify the owner or his agent that the work is being carried on in violation of the permit, and that such work must be suspended until a permit for such deviation from the plans or specifications be obtained, or that such work shall be made to conform to the plans and specifications as filed. If the owner or his agent fail to comply with said notice on the service thereof, it shall be the duty of the engineer to revoke the permit. Written notice of such revocation signed by the engineer shall be immediately served upon the owner or his agent and shall be posted on the premises, and it shall be unlawful for any person to perform any work in or about such structure thereafter” (Section 104.)
Plaintiff had been given a permit to erect a building at the corner of Echague street on Plaza Goiti, but the permit was revoked when it was found that the building was not being constructed according to the plans and specifications approved by the city engineer. Given a second permit upon promise that he would remove the portion of the structure encroaching on the new building line on Echague street and follow the new set of plans and specifications submitted by him and approved by the city engineer, plaintiff did not live up to his promise so that the second permit was likewise revoked. Evidently determined to construct the building the way he wanted, plaintiff applied for a third permit, submitting plans and specifications different from those previously approved by the city engineer, proceeded with the construction without any permit, and, when the construction brought the of Manila to was ordered stopped by the present action in the Court of First Instance enjoin that officer from carrying out his order. The lower court granted the writ applied for, and the city engineer has appealed. In our opinion the writ should not have been granted. It is evident that plaintiff has flouted the law, and to issue the writ applied for is to give sanction to an act of lawlessness. The above-copied section of the Revised Ordinances makes it the duty of the city engineer to suspend construction and revoke the permit when, as in the present case, the owner of the structure persists in violating it. And the section further declares that “it shall be unlawful for any person to perform any work in or about such structure thereafter.” We do not conceive it to be the proper function of the writ of injunction to restrain a public officer from performing a duty specifically imposed by law or to permit the doing of that which is declared unlawful. It is argued, however, that the city can not insist on plaintiff’s following the new building line on Echague street without firsts expropriating the land that will be affected thereby, and that in any event the Municipal Board has already passed a resolution permitting plaintiff under certain conditions to follow the old building line on this street. But even if the old building line were followed, plaintiff would still have to comply with the city ordinance on arcades, the construction of which, according to plaintiff’s own witness, assistant city engineer Augusto Santamaria, is compulsory in that section of the city. More over, if plaintiff believes that the latest set of plans and specifications submitted by him to the city engineer should be approved, his remedy is to apply for a writ of mandamus to compel that officer to give his approval. Without such plans and specifications being first approved and the corresponding permit issued, the construction of plaintiff’s building in accordance therewith would be illegal and should therefore be stopped. In view of the foregoing, the judgment appealed from is reversed and the petition for injunction is denied. Padilla, Montemayor and Jugo, JJ., concur.