PUNO, J.: Court

Petitioner files this petition for review of the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 254291 [Penned by Justice J. Campos, Jr. and concurred in by Justices A. Marigomen and F. Vailoces.] upholding the constitutionality of Presidential Decree (P.D.) No. 1315.

Petitioner Pilo Militante is the registered owner of three (3) contiguous parcels of land with an aggregate area of 1,590 square meters in Balintawak, Caloocan City. The three parcels are covered by TCT Nos. 53066-A, 53067 and 53068, all derived from TCT No. 71357 issued by the Register of Deeds of Caloocan City. Twenty-four (24) squatter families live in these lots.

In 1975, President Marcos issued Presidential Decree (P.D.) No. 13152 [Entitled "Providing for the Expropriation of a Landed Estate Registered Under TCT No. 70298, 78960, Portion of 71357, 2017 and 2018 and All Transfer Certificates of Title Derived Therefrom, in Bagong Barrio, Caloocan City for the Upgrading and the Disposal of Lots Therein to their Present Bonafide Occupants and Other Qualified Squatter Families and Authorizing the Appropriation of Funds for the Purpose."] expropriating forty (40) hectares of land in Bagong Barrio, Caloocan City, covered by TCT Nos. 70298, and 73960, and portions of TCT Nos. 71357, 2017 and 2018. Section 1 of said P.D. reads:

The land expropriated was identified in the decree as a slum area that required the upgrading of basic facilities and services and the disposal of the lots to their bona fide occupants in accordance with the national Slum Improvement and Resettlement (SIR) Program and the Metro Manila Zonal Improvement Program (ZIP).3 [P.D. 1315, Whereas Clauses and Section 2.] It set aside P40 million as the maximum amount of just compensation to be paid the landowners.4 [P.D. 1315, Section 6. ]

The NHA, as the decree’s designated administrator for the national government, undertook the implementation of P.D. 1315 in seven (7) phases called the Bagong Barrio Project (BBP). The properties covered by Phases 1 to 6 were acquired in 1978 and 1979. BBP Phase 7, which includes petitioner’s land, was not among those acquired and paid for in 1978-1979.

Meanwhile, on June 2, 1978, P.D. No. 1396 created the Department of Human Settlements (DHS) and placed the NHA under the supervision of said Department.5 [P.D. 1396, Section 14.] On February 7, 1981, Executive Order No. 648 transferred the regulatory functions of the NHA to the Human Settlements Regulatory Commission (HSRC), a quasi-judicial body attached to the DHS.6 [E.O. 648, Section 4 (a); P.D. 1396, Sections 14 and 18. The DHS was later renamed as the Ministry of Human Settlements (MHS) by P.D. 1397 (1978)]

On September 24, 1981, petitioner wrote the HSRC seeking a declaration of non-coverage from the Urban Land Reform Program of the government. On October 2, 1981, HSRC Commissioner Raymundo R. Dizon, Jr. issued a certificate declaring petitioner’s lots "outside the declared Urban Land Reform Zone." The certification reads as follows: Lexjuris

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 petitioner’s lots.8 [Annex "I" to Petition, Rollo, p. 73.]

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 [Annex "J" to Petition, Rollo, p. 74.] 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.10 [Id.]

On January 21, 1982, NHA General Manager Tobias granted clearance to dismantle and remove all illegal structures on petitioner’s 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: Jurismis

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 petitioner’s 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."12 [Annex "L" to Petition, Rollo, p. 77. ] Jjjuris

Four (4) years later, in 1986, BBP Phase 7 was listed as among the priority projects for implementation under the government’s Community Self-Help Program.13 [Comment of the Government Corporate Counsel, p. 3, Rollo, p. 94.] The NHA, through General Tobias, approved an emergency fund of P2 million for the acquisition of petitioner’s 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 NHA’s maximum offer was P500.00. This was rejected by petitioner, through his lawyer, in a letter dated March 20, 1989.14 [Id., pp. 3-4, Rollo, pp. 94-95.]

On September 8, 1990, petitioner, through counsel, requested for a revalidation of his demolition clearance and relocation of the squatters.15 [Annex "M" to Petition, Rollo, p. 78.]

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: justice

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 decree’s constitutionality.17 [Annex "A" to Petition, Rollo, pp. 51-55.] Petitioner’s motion for reconsideration was also denied on August 31, 1992.18 [Annex "B" to Petition, Rollo, pp. 57-58.] Hence, this recourse where petitioner raises the following issues:

We deny the petition.

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

Prohibition is a preventive remedy.21 [Regalado, Remedial Law Compendium, vol. I, p. 712 (1997)] 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 Carangdang’s 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:

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.23 [Angchangco, Jr. v. Ombudsman, 268 SCRA 301, 304 (1997)]

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 [University of San Agustin, Inc. v. Court of Appeals, 230 SCRA 76, 771 (1994); Avenue Arrastre & Stevedoring Corp. v. Commissioner of Customs, 120 SCRA 878, 880 (1983); Sales v. Mathay, 129 SCRA 180, 183 (1984)] 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 clearance’s 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 [Perez v. City Mayor of Cabanatuan, 3 SCRA 431, 434 (1961); Booc v. Osmena, Jr., 2 SCRA 418, 422 (1961)] If superior administrative officers could grant the relief prayed for, special civil actions are generally not entertained.26 [Peralta v. Salcedo, 101 Phil. 452, 454 (1957)] 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 [Respondents were represented by the Office of the Government Corporate Counsel (OGCC) and the Office of the Solicitor General (OSG)] asserts that petitioner should have brought Carangdang’s 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 [Comment of the OGCC, p. 16.] The General Manager, as Chief Executive Officer of the NHA, has the power of supervision over the operations and internal affairs of NHA.29 [Section 9, P.D. 757, Charter of the NHA.] EsmmÓ is

Third. Petitioner’s 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 [Petition, p. 21, Rollo, p. 38.] 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 petitioner’s own words, he has to attack the constitutionality of P.D. No. 1315 "to x x x break respondent Carangdang’s 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 petitioner’s 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 petitioner’s lot which only measures 1,590 sq. m. Esmsoâ

There is another reason why petitioner’s 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 petitioner’s lot is "outside the declared Urban Land Reform Zone." With this certification, there is reason to believe that taking petitioner’s 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 petitioner’s 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.31 [16 AM JUR 2d S. 207, p. 623.]

There is also merit to the cautionary words of the Solicitor General that to allow petitioner’s flip-flopping stance "might spawn legal and social ramifications which cannot just be lightly ignored,"32 [Comment of the Solicitor General, p. 12.] 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 [106 Phil. 1017 (1960)] 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 [See p. 2 of Mr. Justice Mendoza's Concurring Opinion.] 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:35 [Alfonso, op cit., p. 1022.]

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. Mseä sm

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., join separate opinion of Mr. J. Mendoza.

Mendoza, J., see separate opinion.

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