Dear Mr. Militante:

Anent your request dated 24 September 1981 concerning the abovementioned subject property, please be informed that said parcel of land is located outside the declared Urban Land Reform Zone (LURZ) [sic].

Very truly yours,

RAYMUNDO R. DIZON, JR.
Commissioner."⁷cräläwvirtualibräry

With this certificate, petitioner asked the NHA to relocate the squatters on his land. Acting on the request, General Gaudencio Tobias, NHA General Manager, sent a letter dated October 6, 1981 to Mayor Macario Asistio, Jr., of Caloocan City, to conduct a census of the families occupying petitioners lots.⁸cräläwvirtualibräry

The NHA called the squatters for a dialogue "to look into the possibility of amicably settling the eviction problem and/or to find out why a clearance should be issued or not for the removal/ demolition of all the illegal structures in the said property."⁹ The squatters did not attend the meeting. In view of their failure to attend, Joaquin Castano, Acting Division Manager, Resettlement Division, NHA, wrote a memorandum to the Department Manager, Resettlement Department, NHA, recommending the issuance of a demolition clearance.¹⁰cräläwvirtualibräry

On January 21, 1982, NHA General Manager Tobias granted clearance to dismantle and remove all illegal structures on petitioners property within three (3) months from receipt of the order. Clearance was also granted for the relocation of the 24 families to the Sapang Palay Resettlement Project. The clearance was addressed to Mayor Asistio and reads as follows:

"Sir:

This has reference to the letter of Mr. Pilo Melitante[sic] which was received by our Office on 24 September 1981 regarding his request for the relocation of the families presently occupying his property situated at G. de Jesus Street, Balintawak, that City, covered by TCT Nos. 53066, 53067 and 53068, subject of 1st Indorsement of City Engineer Jose Uson.

Evaluation of the request shows the same to merit favorable consideration. In view thereof, clearance is hereby given that Office to dismantle and/or remove all the illegal structures from the above-cited properties within three (3) months upon receipt hereof, pursuant to the provisions of LOIs 19 and 19-A, and its implementing directives from the Office of the President.

A. Qualified for government resettlement assistance to Sapang Palay Resettlement Project:

[list of names of the 24 occupants]

B. Disqualified from government resettlement assistance

- NONE -

This clearance shall also cover all other structures on subject premises whose owners refused to be interviewed and those who entered the same after the conduct of census survey in 1981.

May we request that the affected families be served written notices given them at least fifteen (15) days within which to vacate voluntarily and/or prepare for their relocation, copies of which must be furnished this Office.

To ensure the smooth conduct of relocation operation thereat, we further request that you inform this Authority at least one (1) week ahead of the scheduled date of implementation of this clearance so we could send our representative to coordinate the same.

Very truly yours,

G. V. TOBIAS
Maj. Gen., AFP (Ret)
General Manager."¹¹cräläwvirtualibräry

The demolition did not take place. In a letter dated September 16, 1982, General Tobias inquired from Mayor Asistio whether Caloocan City had plans of developing petitioners properties in the Bagong Barrio Project. On December 13, 1982, Mayor Asistio replied that "considering the said properties are private in character, the City has no plans presently or in the immediate future to develop or underwrite the development of said properties."¹²cräläwvirtualibräry

Four (4) years later , in 1986, BBP Phase 7 was listed as among the priority projects for implementation under the governments Community Self-Help Program.¹³ The NHA, through General Tobias, approved an emergency fund of P2 million for the acquisition of petitioners lots. NHA started negotiations with petitioner. In 1987, Petitioner, through an authorized representative, made an initial offer of P200.00 per square meter. The NHA made a counter-offer of P175.00 per square meter. Petitioner increased his price to P1,000.00 and later to P3,000.00. NHA General Manager Raymundo R. Dizon, Jr. informed petitioner that NHAs maximum offer was P500.00. This was rejected by petitioner, through his lawyer, in a letter dated March 20, 1989.¹⁴cräläwvirtualibräry

On September 8, 1990, Petitioner, through counsel, requested for a revalidation of his demolition clearance and relocation of the squatters.¹⁵cräläwvirtualibräry

On January 15, 1991, NHA General Manager Monico Jacob revalidated the demolition clearance and informed Mayor Asistio that the NHA was making available enough serviced home lots in Bagong Silang Resettlement Project for the 24 families. The letter of revalidation reads:

"Honorable Macario C. Asistio, Jr.
Mayor
Caloocan City

Re: Revalidation of Letter-Advice on the Relocation and Resettlement of Twenty-four (24) Families from G. de Jesus St., Balintawak, Caloocan City.

Dear Mayor Asistio,

This has reference to the twenty-four (24) squatter families from G. de Jesus St., Balintawak, Caloocan City for relocation and resettlement by your City pursuant to the authority vested by LOIs 19, 19-A and 691.

Finding the documents submitted by your City to NHA to be in order, the provisions of the aforementioned LOIs and the implementing directive from the Office of the President on squatter relocation and resettlement may be enforced.

In accordance with the existing provisions of LOI 19 that indigent families be given resettlement assistance, we are advising you that the National Housing Authority is making available enough serviced homelots in Bagong Silang Resettlement Project for twenty-four (24) families qualified for resettlement assistance per attached approved master list.

We are sending our NHA representatives to cause the accomplishment and issuance of the necessary Entry Passes for the families going to our resettlement project and to provide technical assistance and monitor your relocation operation.

We trust that the established policies, procedures and guidelines on squatter prevention and resettlement including the conduct of information drive, inter-agency coordination and the issuance of notices to affected families, would be strictly observed to ensure peaceful, orderly and humane relocation operation.

Kindly be informed further that the effectivity of this letter advice is valid only for three (3) months from receipt hereof, subject to revalidation upon your recommendation if necessary.

Very truly yours,

MONICO V. JACOB
General Manager."¹⁶cräläwvirtualibräry

Respondent Annabelle Carangdang, NHA Project Manager in Bagong Barrio, refused to implement the clearance to eject the squatters on petitioners land. At the conference of February 13, 1991, Carangdang claimed that petitioners land had already been declared expropriated by P.D. 1315.

Petitioner then filed with the respondent Court of Appeals a "Petition for Prohibition and Mandamus with Declaration as Inexistent and Unconstitutional Presidential Decree No. 1315" against the NHA and Carangdang.

In a decision dated April 24, 1992, the respondent Court of Appeals dismissed the petition and held that petitioner failed to overcome the presumption of the decrees constitutionality.¹⁷ Petitioners motion for reconsideration was also denied on August 31, 1992.¹⁸ Hence, this recourse where petitioner raises the following issues:

"I

WHETHER OR NOT RESPONDENT ANNABELLE CARANGDANG CAN BE COMPELLED TO EFFECT THE DIRECTIVE/ MEMORANDUM OF RELOCATION/ RESETTLEMENT SUBJECTING THE SAID 24 SQUATTER FAMILIES FROM UNLAWFULLY OCCUPYING PETITIONERS SUBJECT PROPERTY WITHOUT DECLARING P.D. 1315 AS VOID AND UNCONSTITUTIONAL; AND

II

WHETHER OR NOT SAID P. D. 1315 AT LEAST UP TO THE EXTENT OF PETITIONERS PROPERTIES ADVERSELY AFFECTED CAN BE DECLARED NULL AND VOID FOR BEING UNCONSTITUTIONAL."¹⁹cräläwvirtualibräry

We deny the petition.

First. Petitioner is not entitled to the writ of prohibition. Section 2 of Rule 65 provides:

"Sec. 2. Petition for prohibition.When the proceedings of any tribunal, corporation, board, or person, whether exercising functions judicial or ministerial, are without or in excess of its jurisdiction, or with grave abuse of discretion, and there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant to desist from further proceedings in the action or matter specified therein.

x x x."²⁰cräläwvirtualibräry

Prohibition is a preventive remedy.²¹ It seeks for a judgment ordering the defendant to desist from continuing with the commission of an act perceived to be illegal.

In the case at bar, petitioner does not pray that respondent Carangdang should be ordered to desist from relocating the squatters. What petitioner challenges is respondent Carangdangs refusal to implement the demolition clearance issued by her administrative superiors. The remedy for a refusal to discharge a legal duty is mandamus, not prohibition.

Second. The petitioner is not also entitled to a writ of mandamus. Section 3, Rule 65 provides:

"Sec. 3. Petition for mandamus.When any tribunal, corporation, board, or person, unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy, and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court alleging the facts with certainty and praying that judgment be rendered commanding the defendant, immediately or at some other specified time, to do the act required to be done to protect the rights of petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant."²²cräläwvirtualibräry

Mandamus is a writ commanding a tribunal, corporation, board, or person to do the act required to be done when it or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law.²³cräläwvirtualibräry

It is incumbent upon petitioner to show that he has a well-defined, clear and certain right to warrant the grant of the writ of mandamus.²⁴ He failed to discharge this burden. The records show that there is no direct order from the NHA General Manager addressed to respondent Carangdang to evict the squatters and demolish their shanties on the subject property. The NHA demolition clearance issued by General Tobias on January 21, 1982 was addressed to Mayor Asistio, the mayor of Caloocan City. The clearances revalidation by NHA General Manager Monico Jacob was likewise addressed to Mayor Asistio.

Furthermore, mandamus is an extraordinary remedy that may be availed of only when there is no plain, speedy and adequate remedy in the ordinary course of law. A petition for mandamus is premature if there are administrative remedies available to the petitioner.²⁵ If superior administrative officers could grant the relief prayed for, special civil actions are generally not entertained.²⁶ In the instant case, petitioner has not exhausted his administrative remedies. He may seek another demolition order from the NHA General Manager this time directly addressed to respondent Carangdang or the pertinent NHA representative. In fact, the Government Corporate Counsel²⁷ asserts that petitioner should have brought Carangdangs inaction to the attention of her superiors. There is therefore no extreme necessity to invoke judicial action as the administrative set-up could have easily corrected the alleged failure to act.²⁸ The General Manager, as Chief Executive Officer of the NHA, has the power of supervision over the operations and internal affairs of NHA.²⁹m is

Third. Petitioners procedure in assailing the constitutionality of P.D. No. 1315 is flawed. His principal concern is the relocation of the squatters on his land. If he could attain this aim, petitioner himself admits in his Petition that "there may not be a need for declaring P.D. No. 1315 null and void."³⁰ Indeed, petitioner assails P.D. No. 1315, purely out of pique against respondent Carangdang who refused to implement the demolition order of her superior. To use petitioners own words, he has to attack the constitutionality of P.D. No. 1315 "to x x x break respondent Carangdangs hypocrisy and pretension." We hold that petitioner has no privilege to assail P.D. No. 1315 as unconstitutional to serve a petty purpose.

Moreover, the facts reveal that petitioners land is not in clear danger of expropriation. P.D. No. 1315 was issued way back in 1975. It covered 40 hectares of land in Bagong Barrio, Caloocan City. Almost all of these 40 hectares had been expropriated as early as 1979 except the 1,590 sq. m. lot of petitioner. Considering this long lapse of time, it is doubtful if the government would still desire to expropriate petitioners lot which only measures 1,590 sq. m.

There is another reason why petitioners lot may no longer be expropriated by government. The land sought to be expropriated under P.D. No. 1315 is defined as an area "identified as a blighted area and included in the SIR Program" which means Slum Improvement and Resettlement Program. On October 2, 1981, however, HSRC Commissioner Dizon, Jr. certified that petitioners lot is "outside the declared Urban Land Reform Zone." With this certification, there is reason to believe that taking petitioners tiny lot of 1,590 sq. m. will serve no social purpose.

Finally, petitioner cannot blow hot and cold on the constitutionality of P.D. No. 1315. He did not question its constitutionality when it was decreed in 1975. In 1987, he even negotiated with NHA for the price of his land. Implicitly but clearly, he recognized the validity of the decree. The negotiation unfortunately fell and the government did not take any further step to expropriate his land. It was only in 1991 after respondent Carangdang refused to eject the squatters in petitioners land that petitioner, out of pique, alleged that P.D. No. 1315 is constitutionally infirmed. A well recognized rule in constitutional law is that estoppel may operate to prevent a party from asserting that an act is unconstitutional.³¹cräläwvirtualibräry

There is also merit to the cautionary words of the Solicitor General that to allow petitioners flip-flopping stance "might spawn legal and social ramifications which cannot just be lightly ignored,"³² since almost all of the 40 hectare land covered by P.D. No. 1315 had been expropriated and awarded to the poor people of our society without their landowners challenging the validity of the decree. In his Concurring Opinion, our esteemed colleague, Mr. Justice Mendoza, denigrates this warning and cites Alfonso v. Pasay City³³ as authority for the view that "if property is taken by the government without the benefit of expropriation proceedings and is devoted to public use, such as a road, after many years, the property owner may no longer bring an action for recovery of his land, but may simply demand payment of just compensation for his land."³⁴ A careful reading of the Alfonso case, however, will show that this Court did not rule that the only remedy of an aggrieved landowner in such a situation is to "simply demand payment of just compensation." To be sure, this Court contemplated the remedy of restoring possession to the aggrieved landowner. If it did not order the remedy, it was only because it was no longer feasible as the lot involved had already been converted to a road. The exact ruling states:³⁵cräläwvirtualibräry

"As registered owner, he could bring an action to recover possession at any time because possession is one of the attributes of ownership of land. However, said restoration of possession by the City of Pasay is neither convenient nor feasible because it is now and has been used for road purposes. So, the only relief available is for the City of Pasay to make due compensation, which it could and should have done years ago since 1925."

In the case at bar, the landowners concerned may not opt for the right to be paid just compensation. The process is not an easy one and may take years especially in light of the budget difficulties of the government. We take judicial notice of the fact that the current budget deficit of the government amounts to P8.9 billion.

IN VIEW WHEREOF , the petition is dismissed. No costs.

SO ORDERED.

Davide, Jr., C.J., Melo, Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

Bellosillo, J., no part, did not took part in deliberation.

Vitug, J., on official leave.

Kapunan, J., concur with the ponencia and with the Separate Opinion of J. Mendoza.

Purisima, JJ., in separate opinion of Mr. J. Mendoza.

Mendoza, J., see separate opinion.

De Leon, Jr., J., see dissenting and concurring opinion.