574 Phil. 147
WHEREFORE, in the light of the foregoing discussion, and finding merit on the herein appeal, ARMC/Appellant is hereby advised to refile its application for Building Permit for the subject proposed 3-storey Dormitory and Support services building with the Office of the Building Official of Marikina, which office, upon Applicant’s full compliance with all the requirements, shall, within the period prescribed by the National Building Code and its IRR, issue the Building Permit applied for. (Emphasis supplied.)On 3 October 2001, the DOH-ARMC re-filed its application for the building permit. Respondent required the DOH-ARMC to also submit the business permit of the project contractor, A.H. Construction. In a letter dated 28 November 2001, the DOH-ARMC informed A.H. Construction of said requirement and advised it “x x x to submit to the City Engineer’s Office (its) renewed Business Permit License for the immediate release of the x x x permits (applied for) x x x.”
WHEREFORE, above premises considered, this Office finds respondent ALFONSO P. ESPIRITU guilty as charged and is hereby meted the penalty of SIX (6) MONTHS and ONE (1) DAY SUSPENSION WITHOUT PAY pursuant to Section 22, par. 6 of Executive Order No. 292 otherwise known as the Administrative Code of 1987.The petitioner explained its Decision in this manner:
The Mayor, Marikina City, is hereby directed to implement the aforesaid decision in accordance with law and upon finality thereof and to inform this office of the action taken thereon within seven (7) days from its implementation.
From the evidence presented by both parties, this Office believes that a substantial ground exists to hold respondent Espiritu administratively liable.Respondent filed a Motion for Reconsideration from the Decision which petitioner denied in an Order dated 21 January 2004.
The alleged “blacklisting” of the complainant’s construction company by the City Mayor of Marikina is not a sufficient reason to deny the issuance of the building permit. x x x.
x x x x
Thus, the act of the respondent in continuously denying the application for building permit sought by the complainant even after having been informed of the Decision of Secretary Datumanong is a showing of his manifest partiality against the applicant. It must be pointed out that the existence of the said DPWH Order for the respondent to issue the building permit left him no choice but to comply since the issuance becomes a mere ministerial act. In fact, under Section 307 of the National Building Code of the Philippines, the decision of the Secretary of DPWH is final subject only to review by the Office of the President. Thus, the respondent’s continued defiance to the Order of the DPWH despite its finality is patently uncalled for and a clear defiance not only to superior authorities but also to the mandate of the law. x x x.
x x x x
Even assuming that the reasons cited by the respondent for denying the permit are true, the same are not ground/s for the non-issuance thereof under Section 306 of the National Building Code.
Apparently, by shifting from one reason to another in order to deny the permit only shows the bias of the respondent towards the complainant.
Also, the respondent had clearly shown his arbitrariness by whimsically denying the application for building permit and yet a demolition permit for the old administration building to be affected by the proposed building had already been secured. It is not disputed that the old administration building was demolished on August 8, 2000 and as such, there is no logic in approving the demolition and denying the application for the building permit.
The issuance of building permits are subject to laws and regulations that have grown complex. While the National Building Code and its implementing rules primarily govern such matter, there are now provisions under the Local Government Code (RA 7160) affecting it. A discussion on this dynamics is relevant to this case for the main defense of petitioner is that he was merely enforcing the laws and rules governing issuance of building permits when he refused to act on the application of DOH-ARMC.Not satisfied with the Decision of the Court of Appeals, petitioner is now before us via a Petition for Review on Certiorari arguing:
x x x x
Hence, in the processing of applications for building permit, the City Engineer cum Building Official will have to enforce the requirements of the National Building Code along with local policies, as petitioner did in this case.
Petitioner twice refused to act on the application of DOH-ARMC for a building permit. On the first occasion, petitioner cited as reasons for his inaction the past infractions of respondent, the latter’s blacklisting with the City Government of Marikina, and the inclusion in the master plan of a waste treatment facility and incinerator, which are not allowed in Marikina City. The DPWH Secretary declared these grounds insufficient to warrant the non-issuance of the building permit. On the second occasion, however, petitioner’s inaction was based on the failure of DOH-ARMC to attach the business permit of respondent.
Evidently, on both occasions, petitioner was merely enforcing local policies, along with the requirements of the National Building Code, in the matter of issuing building permits. During the first instance that he refused to act on the application, the Marikina City Government had raised objections to some aspects of the construction project of respondent which, although later found to be baseless by the DPWH and the agency a quo, respectively, were genuine issues at that time. It was only to be expected that petitioner, as local Civil Engineer cum Building Official, refused to act on the application for building permit in seeming deference to the sentiment of his city government about the questioned project. It would have certainly seemed irregular had petitioner otherwise issued a building permit for a project that was being objected to by his employer, the Marikina City Government. Thus, on this occasion that petitioner refused to act on the application for building permit, the Court perceives no conduct prejudicial to the best interest of the service. On the contrary, petitioner exhibited prudence and loyalty by choosing not to act on the application for building permit but to await the outcome of the controversy between the City Government of Marikina and the project proponent and contractor.
On the second occasion that petitioner refused to act on the refiled application for building permit, several significant facts must be borne in mind. First is that, while the DPWH directed petitioner to issue the building permit, this was made subject to the condition that DOH-ARMC comply with all the requirements. Second, when DOH-ARMC refiled its application, it was found to lack the business permit of respondent, a deficiency that existed only when the second application was filed. Thus, when petitioner again refused to act on the application because of that deficiency, he could have hardly been flouting the final order of the DPWH. He could not have merely been shifting from one reason to another just to withhold the permit for that deficiency existed only then.
THE FINDINGS OF THE OFFICE OF THE OMBUDSMAN ON THE ADMINISTRATIVE LIABILITY OF (RESPONDENT), AS WELL AS THE PENALTY IMPOSED, ARE IN ACCORDANCE WITH LAW AND ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.The issue is: whether or not the non-issuance of the building permit applied for constituted Conduct Prejudicial to the Best Interest of the Service.
No person, firm or corporation, including any agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure or cause the same to be done without first obtaining a building permit therefor from the Building Official assigned in the place where the subject building is located or the building work is to be done.The pertinent provisions in the IRR are as follows:
SECTION 302. Application for PermitsFrom the foregoing provisions, it is clear, however, that the requirements to be complied with for the issuance of building permits are not limited to those mentioned in the National Building Code. As can be gleaned therefrom, clearances from various government authorities exercising and enforcing regulatory functions affecting buildings/structures, like local government units, may be required before a building permit may be issued. Thus, as long as the additional requirements being asked for by these government authorities are reasonable, we rule that the applicant must comply and submit these other requirements. Failure to do so is enough justification for the denial of the application for the issuance of the building permit.
1. Any person desiring to obtain a building permit and any ancillary/accessory permit/s together with a Building Permit shall file application/s therefor on the prescribed application forms.x x x x
12. Clearances from Other Agenciesx x x x
b. Whenever necessary, written clearance shall be obtained from the various authorities exercising and enforcing regulatory functions affecting buildings/structures. x x x Such authorities who are expected to enforce their own regulations are:x x x x
iv. Local Government Unit (LGU)
Under the old IRR, provisions of similar import were also present.RULE I – BUILDING PERMIT APPLICATIONSx x x x
Any person desiring to obtain a building permit shall file an application therefor in writing and on the prescribed form.x x x x
3.4 Whenever necessary, written certifications/clearances shall be obtained from the various government authorities exercising regulatory functions affecting buildings and other related structures, such as the Human Settlements Regulatory Commission x x x.
BUILDING PERMITThere is no dispute that not all of the requirements asked for by the City of Marikina were complied with. In this case, upon being informed of the deficiency (i.e., contractor’s business permit), the DOH-ARMC immediately asked A.H. Construction to submit its renewed business permit but to no avail. Instead of complying, Huevos filed a complaint with the petitioner against respondent. It is very clear that the DOH-ARMC knew that it had to comply with the additional requirement of submitting contractor’s renewed business permit; otherwise, it would not have notified Huevos of such requirement. In fact, if the DOH-ARMC truly believes that the action of respondent was not in accordance with law, rules or ordinance, it could have joined Huevos in complaining before the petitioner. This, it did not do.
No person, firm or corporation, agency or instrumentality of the government shall erect, construct, alter, repair, move, convert or demolish any building or structure (Chapter 3, Section 310 of PD 1096 or National Building Code)
1. Applications for:a.) Building Permit
b.) Electrical Permit
c.) Sanitary/Plumbing Permit
d.) Excavation Permit
e.) Mechanical Permit
g.) Fencing Permit
h.) Demolition Permit
5 set(s) of Building Plans/Blueprints
Homeowner’s Association Clearance
Fire Safety Endorsement – Fire Dept – City Hall
Contractor’s Business Permit/Affidavit of Undertaking. (Underscoring supplied).