POLICARPIO VISCA, PETITIONER-APPELLANT, VS. HON. SECRETARY OF AGRICULTURE AND NATURAL RESOURCES, DIRECTOR OF LANDS, HEIRS OF LEON REYES, REPRESENTED BY ESCOLASTICA FERNANDO, RES…

This case was certified to Us by the
Court of Appeals, per its Resolution, dated March 17, 1975.

The issue to be resolved in this case is whether or not certiorari
and/or mandamus will lie:  1) in
the absence of statements in the petition establishing and proving with
certainty that there is no appeal nor plain, speedy and adequate remedy in the
ordinary course of law; 2) for failure to exhaust the administrative remedy of
appeal to the Office of the President.

Petitioner Policarpio
Visca (hereafter VISCA), upon discovering that the
homestead application of one Leon Reyes (H.A. No. 9893) allegedly approved on August 4, 1948, under Entry No. V-9119, had adversely covered about 24
hectares of the western portion of his 50-hectare land, filed a protest with
the Bureau of Lands on May 28, 1962, claiming that said homestead application
is illegal and unlawful (1) because the land covered thereby is marshy and
swampy and suitable only for fishpond purposes and should be disposed of only
through sale or lease; and 2) for abandonment and non-compliance with the
cultivation requirement of the Public Land Law. 
On September 22, 1969,
he filed a supplemental protest, based on the dummy relationship between the
private respondent herein, Escolastica Fernando, and
one Ceferino Panopio, the
person really interested in the
land covered by the homestead application of Leon Reyes (CA Resolution, pp.
28-29, Rollo).

The Director of Lands dismissed the protest for want of valid and
legal ground on July 29, 1969.  VISCA’s
“Motion for Reconsideration” was likewise denied on June 18, 1970.  The order of dismissal was affirmed by the
Secretary of Agriculture on March 9,
1971.  A motion for
reconsideration was denied on April
28, 1971.

VISCA filed a direct suit for certiorari and mandamus
with the then CFI of Mindoro to:  1) annul the orders of the Director of Lands
and the Decision of the Secretary of Agriculture and Natural Resources and 2)
direct the Director of Lands a) to cancel HA 9893 (E.V. 9119), Leon Reyes’
homestead application, and b) to give due course to his Sales Application over
the controverted land.  Public respondents Director of Lands and the
Secretary of Agriculture filed separate answers, both of which contain special
and affirmative defenses, among which is that VISCA has not exhausted the
administrative remedies, for not appealing to the Office of the President.

Private respondents, on the other hand, filed a motion to dismiss
on the grounds that:

1.  The petition failed to
state a sufficient cause of action for certiorari.

2.  The petitioner failed to
exhaust all his administrative remedies.

The lower court sustained the Motion to Dismiss the dispositive portion of which,
provides as follows:

“After carefully reviewing the pleadings submitted by the
parties, the court is inclined to sustain the motion to dismiss because
according to the New Rules of Court, the petitioner should establish and drove
(sic) with certainty in the petition that there is no appeal nor any plain,
speedy and adequate remedy in the ordinary course of law and in the case at
bar, the appeal should have been interposed and filed with the President
against the decision rendered by the Secretary of Agriculture and Natural
Resources.” (pp. 30-31, Rollo)

Upon denial of his Motion for Reconsideration, petitioner went to
the Court of Appeals, alleging in his lone assignment of error that:

“The trial court erred in dismissing the petition for certiorari
and mandamus (to review and annul decision of the Director of Lands and
Secretary of Agriculture and Natural Resources) on the grounds that:  (a) the petition does not establish and prove
with certainty that there is no appeal nor plain, speedy and adequate remedy in
the ordinary course of law, and (b) petitioner failed to exhaust the
administrative remedy of appeal to the President, despite clear showing in said
petition that the decision of the Director of Lands, affirmed by the decision
of the Secretary, was rendered without any formal hearing whatsoever, whereby
said officials acted with grave abuse
of discretion and/or in excess of their
jurisdiction, and that, appeal to the
President under the circumstances could be
dispensed with” (p. 32, Rollo;
emphasis ours).

On the issue of whether or not the failure to allege in the
petition for certiorari that there is no appeal, nor any plain, speedy
and adequate remedy in the ordinary course of law is a jurisdictional defect,
it is incumbent upon an applicant for a writ of certiorari to allege
with certainty in his verified petition facts showing that “there is no
appeal, nor any plain, speedy and adequate remedy in the ordinary course of
law,” because this is an indispensable ingredient of a valid petition for certiorari.
 “Being a special civil action,
petitioner-appellant must allege and prove that he has no other speedy and
adequate remedy” (Diego vs. Court of Appeals, et al., 54 O.G. No. 4, 956,
cited in Tan vs. Director of Forestry; 125 SCRA 302, at p. 322).  “Where the existence of a remedy by
appeal or some other plain, speedy and adequate remedy precludes the granting
of the writ, the petitioner must allege facts showing that any
existing remedy is impossible or unavailing, or that excuse
petitioner for not having availed himself of such remedy (10 Am. Jur. 2d, Certiorari, 811; emphasis
ours).  A
petition for certiorari which does not comply with the requirements of
the rules may be dismissed” (Iligan Concrete
Products vs. Mogadon, G.R. No. 67706, January 29,
1988).

There is no record of the petition for certiorari filed in
the lower court, but on the basis of the trial court’s ruling that the
petitioner failed to allege facts to show why appeal to the Office of the
President was no longer necessary in seeking judicial relief, then the petition was correctly dismissed on this ground.

This bring Us to the second issue on
whether petitioner failed to exhaust administrative remedies when he filed a
direct suit for certiorari and mandamus.

The rule in administrative law is that parties requesting
judicial action must first exhaust their remedies in the executive branch.  This is premised not only on practical
considerations but also on the comity existing between different departments of
the government, which comity requires the court to stay their hands until the
administrative processes have been completed (Madriñan
vs. Sinco, 110 Phil. 160).

The doctrine of exhaustion of administrative remedies is not
absolute, however.  It is not applicable
in cases (among many other exceptions) (1) where the question in dispute is
purely a legal one (Tapales vs. President and Board
of Regents of the U.P., L-17523, March 30, 1963); and (2) where the
controverted act is patently
illegal or was performed without jurisdiction
or in excess of jurisdiction or where the
respondent Secretary had acted with grave abuse of discretion
amounting to lack or in excess of
jurisdiction.  (Mangubat vs. Osmeña, L-12837,
April 30, 1959, 105 Phil. 1309; Baguio vs. Rodriguez,
L-11068, May 27, 1959, 105 Phil. 1323; Pascual vs.
Provincial Board, L-11959, Oct. 31, 1959, 106 Phil. 406; Cortes vs. Valentin, 100 SCRA 1; Industrial Power Sales Inc. vs. Duma Sinsuat, G.R. No. L-29171, April 15, 1988, 160 SCRA 19).  In the present case, the petition for certiorari
and mandamus was prompted by petitioner’s belief that both respondent
officials had acted with grave abuse of discretion and/or in excess of
jurisdiction, – i.e., the Director of Lands, in dismissing the protest,
“not on evidence formally introduced” but on “records and reason
alone” (p. 16, Reply Brief, p. 26, Rollo) and the Secretary of Agriculture, by
his affirmance in toto
of said Order.  Hence, he is not
precluded from directly resorting to the courts for redress.

However, while the petitioner did not violate the principle on
exhaustion of administrative remedies and is thus not precluded from seeking
immediate judicial relief from the department secretary’s orders, his petition
was nontheless defective for failure to comply with
the formal requirements of a petition for certiorari and mandamus,
Rule 65, Sections 1 and 3, respectively. 
As stated earlier, therefore, the court a quo correctly
dismissed the petition on this ground.

ACCORDINGLY, the decision of the court a quo
dismissing the petition is hereby AFFIRMED.

SO ORDERED.

Narvasa, (Chairman), Cruz, and Grino-Aquino, JJ., concur.

Gancayco, J., no part.