DONALD MEAD, petitioner,

vs.
HON. MANUEL A. ARGEL in his capacity as Presiding Judge in the Court of First Instance of
Rizal, Branch XXXV and the PEOPLE OF THE PHILIPPINES, respondents.
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 the 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.
If the question of jurisdiction were not the main ground for this petition for review by certiorari,
it would be premature because it seeks to have a review of an interlocutory order. But as it
would be useless and futile to go ahead with the proceedings if the court below had no
jurisdiction this petition was given due course.' (San Beda vs. CIA 51 O.G. 6636, 5638).
While it is true that action on a motion to dismiss may be deferred until the trial and an order
to that effect is interlocutory, still where it clearly appears that the trial judge or court is
proceeding in excess or outside of its jurisdiction, the remedy of prohibition would lie since it
would be useless and a waste of time to go ahead with the 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, 51 Off. Gaz. 5636.) (University of Sto.
Tomas vs. Villanueva, L-13748, 30 October 1959.) (Time, Inc. vs. Reyes, 39 SCRA, pp. 315316.)
An additional factor that induced Us to entertain the instant petition is the obvious merit We find in
the same. Our reading of the provisions of Republic Act No. 3931 has convinced Us that the clear
legislative intention is to vest in the Commission the exclusive authority to determine the existence
of "pollution" penalized thereunder and to prosecute violations of said law.
The information filed against the herein petitioner charges him with a violation of Section 9, in
relation to Section 10 of Republic Act No. 3931. More specifically, it alleges that the petitioner, with
his co-accused Isaac Arivas, "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 arriving plants in the vicinity and providing hazard to
health and property in the same vicinity."
Section 9 in its first paragraph, supposedly the criminal act being imputed to the petitioner, reads
as follows:
SEC. 9. Prohibitions. No person shall throw, run, drain, or otherwise dispose into any of the
water and/or atmospheric air of the Philippines, or cause, permit, suffer to be thrown, run,

drain, allow to see or otherwise dispose into such waters or atmospheric air, any organic or
inorganic matter or any substance in gaseous or liquid form that shall cause pollution of such
waters or atmospheric air.
It will be noted from the above-quoted provision that the prohibited act is to throw, run, drain or
otherwise dispose into any of the water and/or atmospheric air of the Philippines, any organic or
inorganic matter or substance "that shall cause pollution of such waters or atmospheric air." Stated
in simpler terms, the offense allegedly committed by the petitioner was the act of causing pollution
of a waterway (highway canal).
The term "pollution" as used in the law is not to be taken in its ordinary signification. In Section 2,
paragraph (a), of Republic Act No. 3931, "pollution" is defined in these words:
(a) Pollution' means such alteration of the physical, chemical and/or biological properties of
any water and/or atmospheric air of the Philippines, or any such discharge of 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 air harmful or detrimental or
injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural,
recreational or other legitimate uses, or to livestock, wild animals, birds, fish or of her aquatic
life.
The power to determine the existence of pollution is vested by the law in the Commission. Section
6, among others, gives the Commission the authority to "determine whether a pollution exists in
any of the waters and/or atmospheric air of the Philippines." (Section 6(a), No. 1); to "hold public
hearings, ... make findings of facts and determinations all with respect to the violations of this Act or
orders issued by the Commission." (Ibid., No. 3); to "institute or cause to be instituted in the court
of competent jurisdiction legal proceedings to compel compliance with the provisions of this Act"
(Ibid, No. 5); and, "after due notice and hearing, revoke, suspend or modify any permit issued
under this Act whenever modifications are necessary to prevent or abate pollution of any water
and/or atmospheric air of the Philippines." (Ibid., No. 7.) Section 8 contains explicit provisions as to
the authority of the Commission to determine the existence of pollution and to take appropriate
court actions to abate or prevent the same. It provides:
SEC. 8. Proceedings before the Commission . The Commission may, on its own motion, or
upon the request of any person, investigate or may inquire, in a manner to be determined by
it, as to any alleged act of pollution or the omission or failure to comply with any provisions of
this Act or any order of this Commission.
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 parttime commissioners shall be a recommendee of the 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 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.
POLLUTION ADJUDICATION BOARD, petitioner vs.
COURT OF APPEALS and SOLAR TEXTILE FINISHING CORPORATION, respondents.
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%
of the wastewater was being directly discharged into a drainage canal leading to the TullahanTinejeros 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 nonoperational 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.
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.
The only issue before us at this time is whether or not the Court of Appeals erred in reversing the
trial court on the ground that Solar had been denied due process by the Board.
Petitioner Board claims that under P.D. No. 984, Section 7(a), it has legal authority to issue ex
parte orders to suspend the operations of an establishment when there is prima facie evidence that
such establishment is discharging effluents or wastewater, the pollution level of which exceeds the
maximum permissible standards set by the NPCC (now, the Board). Petitioner Board contends that
the reports before it concerning the effluent discharges of Solar into the Tullahan-Tinejeros River
provided prima facie evidence of violation by Solar of Section 5 of the 1982 Effluent Code.
Solar, on the other hand, contends that under the Board's own rules and regulations, an ex
parte order may issue only if the effluents discharged pose an "immediate threat to life, public
health, safety or welfare, or to animal and plant life." In the instant case, according to Solar, the
inspection reports before the Board made no finding that Solar's wastewater discharged posed
such a threat.
The Court is not persuaded by Solar's contention. Section 7(a) of P.D. No. 984 authorized
petitioner Board to issueex parte cease and desist orders under the following circumstances:
P.D. 984, Section 7, paragraph (a), provides:
(a) Public Hearing. . . . Provided, That whenever the Commission finds prima facie evidence
that the discharged sewage or wastes are of immediate threat to life, public health, safety or
welfare, or to animal or plant life, or exceeds the allowable standards set by the Commission,
the Commissioner may issue an ex-parte order directing the discontinuance of the same or

the temporary suspension or cessation of operation of the establishment or person generating

such sewage or wastes without the necessity of a prior public hearing. The said ex-parte
order shall be immediately executory and shall remain in force until said establishment or
person prevents or abates the said pollution within the allowable standards or modified or
nullified by a competent court. (Emphasis supplied)
We note that under the above-quoted portion of Section 7(a) of P.D. No. 984, an ex parte cease
and desist order may be issued by the Board (a) whenever the wastes discharged by an
establishment pose an "immediate threat to life, public health, safety or welfare, or to animal or
plant life," or (b) whenever such discharges or wastes exceed "the allowable standards set by the
[NPCC]." On the one hand, it is not essential that the Board prove that an "immediate threat to life,
public health, safety or welfare, or to animal or plant life" exists before an ex parte cease and desist
order may be issued. It is enough if the Board finds that the wastes discharged do exceed "the
allowable standards set by the [NPCC]." In respect of discharges of wastes as to which allowable
standards have been set by the Commission, the Board may issue an ex parte cease and desist
order when there is prima facie evidence of an establishment exceeding such allowable standards.
Where, however, the effluents or discharges have not yet been the subject matter of allowable
standards set by the Commission, then the Board may act on an ex parte basis when it finds at
least prima facie proof that the wastewater or material involved presents an "immediate threat to
life, public health, safety or welfare or to animal or plant life." Since the applicable standards set by
the Commission existing at any given time may well not cover every possible or imaginable kind of
effluent or waste discharge, the general standard of an "immediate threat to life, public health,
safety or welfare, or to animal and plant life" remains necessary.
Upon the other hand, the Court must assume that the extant allowable standards have been set by
the Commission or Board precisely in order to avoid or neutralize an "immediate threat to life,
public health, safety or welfare, or to animal or plant life.''
Section 5 of the Effluent Regulations of 1982 4 sets out the maximum permissible levels of physical
and chemical substances which effluents from domestic wastewater treatment plants and industrial
plants" must not exceed "when discharged into bodies of water classified as Class A, B, C, D, SB
and SC in accordance with the 1978 NPCC Rules and Regulations." The waters of TullahanTinejeros River are classified as inland waters Class D under Section 68 of the 1978 NPCC Rules
and Regulations 5 which in part provides that:
Sec. 68. Water Usage and Classification. The quality of Philippine waters shall be
maintained in a safe and satisfactory condition according to their best usages. For this
purpose, all water shall be classified according to the following beneficial usages: xxx
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 effluents emanating from Solar's plant exceeded the maximum 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

(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 welfare and comfort, by disregarding the
requirements of anti- 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.
TECHNOLOGY DEVELOPERS, INC., petitioner,
vs.
COURT OF APPEALS, HON. NARCISO T. ATIENZA as Presiding Judge, Bulacan, RTC, and
HON. VICENTE CRUZ, Acting Mayor and the MUNICIPALITY OF STA. MARIA,
BULACAN, respondents.
The authority of the local executive to protect the community from pollution is the center of this
controversy.
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 AntiPollution 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: xxx
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:

(3) Region III-Department of Environment and Natural Resources AntiPollution 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 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.
ERNESTO R. RODRIGUEZ, JR., ERNESTO LL. RODRIGUEZ III, SACHA DEL ROSARIO, JOSE
P. GENITO, ZENAIDA Z. RODRIGUEZ, and ENECERIO MONDIA, petitioners, vs.
INTERMEDIATE APPELLATE COURT and DAYTONA CONSTRUCTION & DEVELOPMENT
CORPORATION,respondents.
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.

(1) Building permit;

(2) Mayor's permit; and

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.
On June 30, 1982, the court a quo rendered judgment for the plaintiffs and against defendant, its
dispositive portion reading as follows: xxx
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)

Meanwhile, on April 23, 1986, defendant's opposition to the motion for extension and countermotion 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 inHabaluyas 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 petition 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:

On March 21, 1986, respondent court promulgated its decision, the decretal portion of which is as
follows: xxx
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.

1). Beginning one month after the promulgation of this Resolution, the rule shall be strictly
enforced thatno 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 ofres 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 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 P250,000.00 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 connected with various
hospitals in Manila, advised him against exposure to environmental allegens, specifically
cement dust and pollution. He also submitted as exhibits various newspaper clippings (Exhibit
M and excerpts from a book (Exhibits N and N-1 showing that pollution can 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 it is the common denominator of
respiratory diseases, especially asthma chronic bronchitis, bronchial asthma and emphysema
and that polluted air can develop abnormalities in lung function.
Dr. Raul I. del Rosario, a neighboring physician, testified that he had treated several patients
who traced their sickness to the pollution caused by defendant Daytona batching plant. He
said that cement dust produces broncho-pulmonary obstructive diseases, broncho fibriotic
lesions which may produce cardio pulmonary complications, and the people living in the
neighborhood of the batching plant are the most susceptible to these diseases. He reported
many cases of bronchial asthma in both children and adult who live in the vicinity of the
cement batching plant and these cases have been intermittently admitted and discharged
from the Quirino Labor Hospital where he presently works as a resident physician. He had
intended to open a medical clinic at his residence but he could not do so because the
washings from the cement mixers are dumped on the access road in front of his house and
when these washings are dried up they pollute the neighborhood, rendering his intended
medical clinic unfit and impractical for the treatment of patients, particularly those suffering
from respiratory ailments.
Another lawyer, Eliseo Alampay, Jr., who likewise resides a few meters away from the site of
the Daytona batching plant, testified that the said plant is certainly injurious to the health; that
the cement dust are agents of lung ailments, impair the growth of plants and even kill the
birds in their cages; that it is a demonstrable nuisance because its uncontrolled engine noise
and night long pounding prevent the neighborhood from being able to sleep soundly and
peacefully. He told the court that there was a time when he felt like organizing the whole
neighborhood into a demolition team to forcibly dismantle the entire Daytona plant because
"the authorities 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 pollution that the batching plant of the defendant causes. (Decision in Injunction Case,
AC-G.R. No. 14602-SP, pp. 10-14)
Anent the default order, the appellate court in the injunction case said:
From the foregoing, it appears that petitioner was recreant in failing to file an answer after
respondent judge denied its motion to dismiss the complaint. The motion to dismiss was
denied in the order of the lower court under date of 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 said court on July 7, 1981. Instead of filing
an answer promptly, petitioner filed with the Supreme Court a motion for extension of time to
file a petition for review, but it never filed one, prompting the Supreme Court to issue
a resolution dated October 5, 1981 informing the parties that no petition for review was filed
within the period that expired on August 15, 1981. Inspite of the Supreme Court's resolution,
petitioner still failed to file any answer or pleading to arrest the running of the prescriptive
period. It was only on July 23, 1982, when petitioner filed its Petition for Relief which was nine
(9) months after the Supreme Court's resolution was issued. Petitioner's assertion in its
Petition for Relief that the failure to file the answer was caused by "the unforseen sickness of

its corporate secretary who has custody of the records necessary for the preparation of its
defense" cannot be taken without much doubt and hesitation. Petitioner did not even point out
who was the supposed corporate secretary or explain why the records were in the possession
of the corporate secretary instead of the counsel handling the case. (Decision in Injunction
case, p. 16; emphasis supplied)
With reference to defendant's allegation that it thought that the period within which to answer (after
its motion to dismiss had been denied) had been suspended by its having filed a petition for review
before the Supreme Court, same is without merit. The circumstances of the case point to a
deliberate desire to delay: the corporation, governed as it is by knowledgeable business
executives, should have taken steps to prevent its being declared in default. The corporation
waited six (6) months before verifying the status of the case: in the meantime it had been declared
in default, a judgment by default had been rendered against it, execution was already pending
before it woke up to file the case at hand.
We agree with Justice Luis A. Javellana in his concurring opinion in the injunction case before the
appellate court, thus:
Petitioner's conduct here appears to me to be tainted with fraud 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 intention of elevating the case
to the Supreme Court otherwise, it would not have allowed the extended period given to it by
the Supreme Court to lapse without filing the petition. Or, if it was in good faith, there it should
have informed the trial court that it was no longer pursuing its remedy in the Supreme Court
after it had decided that it is no longer availing of such remedy. Instead, it concealed 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. 34; emphasis supplied)
WHEREFORE, the assailed decision and resolution are hereby SET ASIDE, and a new judgment
is hereby rendered REINSTATING the decision of the trial court with the modification that all
awards for nominal damages are hereby eliminated. Costs against private respondent. SO
ORDERED.