While it is settled that respondent does not have the legal right to enclose the property, we should now determine whether petitioner indeed performed his official functions properly.

First. Petitioner claims that his act of summarily removing respondent’s concrete posts was authorized under the National Building Code (Presidential Decree No. 1096). The provision he cites correctly pertains to Section 215, which reads—

Sec. 215. Abatement of Dangerous Buildings.—When any building or structure is found or declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or demolition depending upon the decree of danger to life, health, or safety. This is without prejudice to further action that may be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the Philippines.1avvphi1

To better understand this provision, we refer to Section 214 of the same law, which defines what are dangerous and ruinous buildings or structures susceptible of abatement. It provides—

Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those which are herein declared as such or are structurally unsafe or not provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation to existing use, constitute a hazard to safety or health or public welfare because of inadequate maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to the pollution of the site or the community to an intolerable degree.1avvphi1

A careful reading of the foregoing provisions would readily show that they do not apply to the respondent’s situation. Nowhere was it shown that the concrete posts put up by respondent in what he believed was his and his co-owners’ property were ever declared dangerous or ruinous, such that they can be summarily demolished by petitioner.

What is more, it appears that the concrete posts do not even fall within the scope of the provisions of the National Building Code. The Code does not expressly define the word "building." However, we find helpful the dictionary definition of the word "building," viz:

[A] constructed edifice designed usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure – distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.²⁹

The provisions of the National Building Code would confirm that "building" as used therein conforms to this definition. Thus, applying the statutory construction principle of ejusdem generic,³⁰ the word "structure" should be construed in the context of the definition of the word "building." The concrete posts put up by respondent on the property are not properly covered by the definition of the word "building" nor is it embraced in the corresponding interpretation of the word "structure."

Second. Petitioner contends that respondent’s concrete posts were in the nature of a nuisance per se, which may be the subject of summary abatement sans any judicial proceedings. Again, we disagree.

A nuisance per se is that which affects the immediate safety of persons and property and may be summarily abated under the undefined law of necessity.³¹ Evidently, the concrete posts summarily removed by petitioner did not at all pose a hazard to the safety of persons and properties, which would have necessitated immediate and summary abatement. What they did, at most, was to pose an inconvenience to the public by blocking the free passage of people to and from the national road.

Third. Petitioner likewise maintains that his authority to perform the assailed official act sprang from Section 23 of the Revised Philippine Highway Act. He posits that this provision is particularly implemented by Department Order No. 52,³² Series of 2003 of the Department of Public Works and Highways for the Removal of Obstructions and Prohibited Uses within the Right-of-Way of National Roads.

Department Order No. 52 directs all District Engineers to immediately remove or cause the removal of all obstructions and prohibited uses within the right-of-way of all national roads in their respective jurisdictions. These obstructions and prohibited uses include, among others, all kinds of private, temporary and permanent structures, such as buildings, houses, shanties, stores, shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences, walls, railings, basketball courts, garbage receptacles, and the like. The Department Order requires the District Engineers to issue notices to the concerned persons to remove the obstructions and prohibited uses within the right-of-way, and shall follow through prompt compliance with these notices and full implementation of the Order. It further provides that appropriate sanctions will be taken against those who fail to comply with its provisions.

Gauging the action of petitioner based on the guidelines set by Department Order No. 52, from which he claims his authority, we cannot but conclude that petitioner went beyond the scope of his official power because it is the concerned District Engineer of the Department of Public Works and Highways who should have ordered respondent to remove the concrete posts. The petitioner failed to show that he was duly authorized by the District Engineer to implement the Department Order in Naic, Cavite. More importantly, even assuming that petitioner had been duly authorized to order the removal of the concrete posts of respondent, he failed to prove that he issued the required notice to respondent to remove the said structures before he did the removal himself. Note that petitioner, in fact, admitted in his pleadings that he summarily removed the said posts.

The Revised Philippine Highway Act and Department Order No. 52 do not expressly provide for the administrative sanction to be taken against public officials violating their provisions. Hence, we must refer to the Uniform Rules on Administrative Cases in the Civil Service. We believe that the administrative offense committed by petitioner through the questioned act was only Discourtesy in the Course of Official Duties, which is a light offense under Rule IV, Section 52 of the said Rules. The penalties imposable for such an offense are a reprimand for the first offense, a suspension from 1 day to 30 days for the second offense, and dismissal from public service for the third offense. Since this appears to be petitioner’s first offense, his action warrants only a REPRIMAND.

G.R. No. 182567 July 13, 2009

GUILLERMO M. TELMO, Petitioner,
vs.
LUCIANO M. BUSTAMANTE, Respondent.