SECOND DIVISION

[G.R. No. 252946. February 10, 2021.]

MANDALUYONG CITY GOVERNMENT, petitioner,vs. PAGONG REALTY

CORPORATION, HON. EDILWASIF T. BADDIRI, ACTING PRESIDING
JUDGE, REGIONAL TRIAL COURT, BRANCH 208, MANDALUYONG CITY
AND THE COURT OF APPEALS, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a

Resolution dated 10 February 2021which reads as follows:

"G.R. No. 252946 (Mandaluyong City Government v. Pagong Realty

Corporation, Hon. Edilwasif T. Baddiri, Acting Presiding Judge,
Regional Trial Court, Branch 208, Mandaluyong City and the Court of
Appeals). —

At the outset, the proper remedy to question the Court of Appeals'

judgment, final order, or resolution is via a petition for review
on certiorari under Section 1, Rule 45 of the Rules of Court, viz.:

Section 1. Filing of petition with Supreme Court. —

A party desiring to appeal by certiorari from a judgment or final

order or resolution of the Court of Appeals, x x x whenever
authorized by law, may file with the Supreme Court a verified
petition for review on certiorari. The petition shall raise only
questions of law which must be distinctly set forth.

Under Rule 45 of the Rules of Court, decisions, final orders, or

resolutions of the Court of Appeals, regardless of the nature of the
action or proceedings involved, may be appealed to the Supreme
Court by filing a petition for review on certiorari which would just be
a continuation of the appellate process over the original case. 1

On the other hand, a special civil action under Rule 65 is a limited

form of review and a remedy of last recourse. It is an independent
action that lies only where there is no appeal nor plain, speedy and
adequate remedy in the ordinary course of law. Certiorari will issue
only to correct errors of jurisdiction, not errors of procedure or
mistakes in the findings or conclusions of the lower court. So long as
the court a quo acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing
more than mere errors of judgment, correctible by an appeal or a
petition for review under Rule 45 of the Rules of Court. 2

Here, appeal via Rule 45 was not only available but also a speedy
and adequate remedy. Clearly, petitioner Mandaluyong City
Government availed of the wrong remedy when it initiated the
present petition for certiorari before the Court. Hence, even on this
ground alone, the petition should be dismissed outright.

But even on the merits, the petition must fail.

Section 19 of the Local Government Code (LGC) 3 provides:

SEC. 19. Eminent Domain. — A local government unit may, through

its chief executive and acting pursuant to an ordinance, exercise the
power of eminent domain for public use, or purpose[,] or welfare for
the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That, the amount to
be paid for the expropriated property shall be determined by the
proper court, based on the fair market value at the time of the
taking of the property. (Emphasis supplied)

Thus, issuance of a writ of possession requires the following: (a) the

sufficiency in form and substance of the complaint, and (b) the
provisional deposit equivalent to fifteen percent (15%) of the fair
market value of the property based on the current tax declaration of
the property to be expropriated. Upon compliance with these
requirements, the petitioner in an expropriation case is entitled to a
writ of possession as a matter of right and the issuance of the writ
becomes ministerial. 4

Here, the complaint was not sufficient in form and substance since it
failed to comply with the mandatory requirements for the exercise
of the power of eminent domain for purposes of socialized housing.
Consider:

Republic Act No. 7279 (RA 7279) otherwise known as the Urban
Development and Housing Act of 1992, requires:
SEC 9. Priorities in the Acquisition of Land. — Lands for socialized
housing shall be acquired in the following order:

(a) Those owned by the Government or any of its subdivisions,

instrumentalities, or agencies, including government-owned or
controlled corporations and their subsidiaries;

(b) Alienable lands of the public domain;

(c) Unregistered or abandoned and idle lands;

(d) Those within the declared Areas or Priority Development, Zonal

Improvement Program sites, and Slum Improvement and
Resettlement Program sites which have not yet been acquired;

(e) Bagong Lipunan Improvement of Sites and Services or BLISS

sites which have not yet been acquired; and

(f) Privately-owned lands.

Where [on-site] development is found more practicable and

advantageous to the beneficiaries, the priorities mentioned in this
section shall not apply. The local government units shall give
budgetary priority to on-site development of government lands.

SEC. 10. Modes of Land Acquisition. — The modes of acquiring lands

for purposes of this Act shall include, among others, community
mortgage, land swapping, land assembly or consolidation, land
banking, donation to the Government, joint-venture agreement,
negotiated purchase, and expropriation: Provided, however, That
expropriation shall be resorted to only when other modes of
acquisition have been exhausted: Provided, further, That where
expropriation is resorted to, parcels of land owned by small property
owners shall be exempted for purposes of this Act: x x x. (Emphases
supplied)

The complaint bore an allegation that "there are no government

lands or alienable lands of the public domain or unregistered or
abandoned or idle lands that are available or BLISS sites which have
not yet been acquired" that is suitable for socialized housing. Aside
from such allegation, however, petitioner failed to present evidence
to justify its non-compliance with Section 9 of RA 7279 ranking
privately-owned lands last in the order of priority of lands to be
expropriated for socialized housing. Indeed, mere allegation is not
evidence and is not equivalent to proof.

Petitioner likewise failed to exhaust the other modes of acquisition

before it resorted to expropriation in violation of Section 10 of RA
7279. City of Manila v. Alegar Corporation5 ruled that when the
property owner rejects the offer but hints for a better price, the
government should renegotiate by calling the property owner to a
conference. Article 35 of the Rules and Regulations Implementing
the Local Government Code states:

Article 35. Offer to Buy and Contract of Sale — (a) The offer to buy
private property for public use or purpose shall be in writing. It shall
specify the property sought to be acquired, the reasons for its
acquisition, and the price offered.

xxx xxx xxx

(c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive
shall call them to a conference for the purpose of reaching an
agreement on the selling price. The chairman of the appropriation
or finance committee of the sanggunian, or in his absence, any
member of the sanggunian duly chosen as its representative, shall
participate in the conference. When an agreement is reached by the
parties, a contract of sale shall be drawn and executed.

Here, petitioner offered to purchase respondent Pagong Realty

Corporation's property for Three Thousand Five Hundred Pesos
(P3,500.00) per sq.m. As it was, however, after respondent had
rejected its offer because it was too low (even lower than the
current zonal value of the property) petitioner no longer bothered to
renegotiate or improve its offer. City of Manila v. Prieto6 held that
the intent of the law is for the State or the local government to
make a reasonable offer in good faith, not merely a pro forma offer
to acquire the property. Since, petitioner did not exert an honest to
goodness effort to secure the subject property via negotiated sale,
there was actually no valid and definite offer to speak of as
condition precedent to the filing of the expropriation complaint.

In Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes v. City of

Manila, 7 the Court emphasized that compliance with Sections 9
and 10 of RA 7279 is mandatory because these are the only
safeguards for the oftentimes helpless owners of private property
against what may be a tyrannical violation of due process when
their property is forcibly taken from them allegedly for public use.

Finally, Section 19 of the LGC mandates that there must be a

deposit of the amount equivalent to fifteen percent (15%) of the fair
market value of the property to be expropriated based on its current
tax declaration. Petitioner made a provisional deposit of Three
Million Pesos (P3,000,000.00) but the case records do not show if
the same was indeed equivalent to fifteen percent (15%) of the fair
market value based on the current tax declaration of subject
property. On this score, we agree with the Court of Appeals' lucid
disquisition, thus:

It does not appear in the records that a copy of the latest tax
declaration at the time of the filing of the complaint in 2016 was
presented by the City Government. In fact, x x x the City
Government does not refute the claim of [respondent] that the
amount of deposit (Php3 Million) was based on a 1993 tax
declaration. Neither does it appear in the questioned Order of 23
March 2017 that the true "current tax declaration" was used as the
basis in the computation of the fifteen percent (15%) deposit, as it
was only ruled that:

x x x In essence, Plaintiff moves that [it] is entitled to a writ of

possession as accordingly, a complaint was filed with a responsive
pleading equally filed and, the filing of (Php3,000,000.00) to the
Honorable Court which is alleged as more [than fifteen percent]
(15%) of the fair market value of the property sought to be
expropriated based on its current tax declaration (Tax Declaration
No. D-011-00001).

It is impossible for the Court to determine whether Tax Declaration

No. D-011-00001 is indeed the "current tax declaration" as it is not
found in the records of the case.

A copy of the expropriation complaint filed in the court a

quo mentions an attachment marked as "Annex B" which was
described as Tax Declaration No. D-023-00454 covering the subject
property but no such attachment exists in the records.

xxx xxx xxx

As it was not shown that the basis used in the computation of the
amount of initial deposit was indeed the "current tax declaration"
being referred to by Section 19 of the LGC, the Court cannot rule
that the deposit requirement was complied with. 8

To be sure, as City of Manila v. Prieto9 ordained, while we recognize

petitioner's power to expropriate and the fact that housing is one of
the most serious social problems that it needs to address, it is
equally important to acknowledge that local government units do
not have an unbridled authority to exercise such formidable power
in seeking solutions to such problem. Again, such formidable power
greatly affects a citizen's fundamental right to property, hence,
there is a need to strictly comply with the conditions and restrictions
set forth in the Constitution and pertinent laws to assure that every
right is protected and every mandate is properly discharged. Thus,
the ruling here is not meant to disparage the local government
units' delegated power to expropriate. It merely calls for compliance
with all the legal requirements, as well as the presentation of proof
of such compliance.

All told, the Court of Appeals did not err, much less, gravely abuse
its discretion when it set aside the assailed writ of possession in
view of petitioner's non-compliance with the mandatory
requirements for its issuance.

WHEREFORE, the petition is DENIED and the assailed Decision dated

August 9, 2019 and Resolution dated March 3, 2020 of the Court of
Appeals in CA-G.R. SP No. 153588, AFFIRMED.

SO ORDERED."

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court