GERARDO D. ABE-ABE, FELICIANO MADRONA, LORETO VALDEHUEZA, MELECIO PEÑALOSA, PELAGIO BABIA, JUANITO TUMILAP, TIMOTEO CHAN, RICARDO BACOR, JESUS DORIA, VITELIANO DORIA, PABLO SIMI…

The legal issue in this case is whether the Court of First
Instance of Camiguin has jurisdiction to adjudicate a
dispute over water rights for irrigation purposes even if the controversy has
not yet been passed upon by the National Water Resources Council, the agency
vested with original and exclusive competence to resolve conflicting claims on
the appropriation of water resources.

On August 20, 1976,
the one hundred thirty-seven petitioners (farmers and owners of ricelands) filed an injunction suit in the Camiguin court against Pedro P. Romualdo
(a lawyer and delegate to the 1971 Constitutional Convention).

The purpose of the suit was to secure a judicial declaration as
to the petitioners’ prior vested rights under article 504 of the Civil Code to
use the water of the Anibungan (Inoboñgan),
Ablay and Tajong Creeks to
irrigate their ricelands located upstream in
Barrios Lumad and Baylao, Mambajao, Camiguin.  The petitioners sought to enjoin Romualdo from using the water of the creeks at night to
irrigate his two-hectare riceland located downstream.  That nocturnal use was allegedly prejudicial
to the petitioners.

Their version is that their use of the water of the creeks
started in 1938; that in 1952 or after the volcanic eruption, the waters of the
creeks were made to converge in a single channel and two diversion dams were
constructed with the help of the municipal government and the Presidential Arm
on Community Development (PACD).  The National Irrigation Administration
allegedly contributed money for the improvement of the dams.  The petitioners wanted to convey the
impression that the communal irrigation system was established primarily for
the benefit of the ricelands located upstream.

In July, 1976, respondent or defendant Romualdo
started using the water of the creeks by opening the diversion dams at
night.  That act provoked the filing of
the injunction suit already mentioned.

Romualdo’s version in his answer is
that at a con­ference held on July 29, 1976 among the petitioners (with their
counsel), the provincial commander, the district en­gineer, the mayor, the
members of the Sangguniang Bayan
and Romualdo, it was agreed upon that the water of
the creeks would be used on a rotation basis: 
the petitioners would use it in the daytime and Romualdo
and the other landowners downstream would use the water at night.  The opening and closing of the dam would be
under the control of the pro­vincial commander.

Romualdo alleged that on June 21, 1976
he filed a a water permit application with the
district engineer’s office as required in Presidential Decree No. 424 so that
he could use legitimately the water to irrigate his riceland
located downstream near the seashore in Sitio Boloc-Boloc.  The
regional director of the Bureau of Public Works issued to Romualdo
on October 5, 1976 a
temporary authority to use the water of the creeks.  In contrast, the petitioners did not file any
water permit applications although required to do so by the district engineer’s
office.

Romualdo interposed the defense that
the lower court had no jurisdiction over the subject matter of the suit.  He contended that the petitioners’ remedy was
to file their complaint with the district engineer’s office pursuant to
Department Order No. 245 dated September 29, 1958 of the Undersecretary of
Public Works and Communications regarding the determination of water rights
controversies.

Romualdo also invoked Presidential
Decree No. 424, which took effect on March 28, 1974 and which created the
National Water Resources Council (to replace the Water Resources Committee) and
vested it with powers to coordinate and integrate water resources development
activities or, according to its section 2, to “determine, adjudicate, and
grant water rights” (70 O.G. 2912).  Romualdo argued
that Presidential Decree No. 424 repealed article 504 of the Civil Code which
allows the acquisition of the use of public waters by prescription for ten
years.  Article 504 is the statutory
basis of petitioners’ alleged preferential water rights.

After the lower court found that on January 14, 1977 Romualdo’s temporary permit to use the water of the communal
irrigation system was cancelled, as directed by the executive director of the
National Water Resources Council, it issued on February 11, 1977 an order
enjoining Romualdo from diverting the water of the
creeks to his two-hectare farm.

In the meantime, the Water Code of the Philippines or
Presidential Decree No. 1067 was promulgated on December 31, 1976 (73 O.G. 3554).  Romualdo urged the trial court to dismiss the injunction
suit on the ground of lack of jurisdiction because the controversy should first
be passed upon by the National Water Resources Council, as allegedly required
under Presidential Decree No. 424 and under the following provisions of the
Water Code which confer original jurisdiction upon the Council to decide
controversies on water rights and which vest appellate jurisdiction in
the Court of First Instance to review the Council’s decisions:

“ART. 88.  The Council
shall have original jurisdiction over all disputes relating to appropriation,
utilization, exploitation, development, control, conservation and protection of
waters within the meaning and context of the provisions of this Code.

“The decisions of the Council on water rights controversies
shall be immediately executory and the enforcement
thereof may be suspended only when a bond, in an amount fixed by the Council to
answer for damages occasioned by the suspension or stay of execution, shall
have been filed by the appealing party, unless the suspension is by virtue of
an order of a competent court.

“All disputes shall be decided within sixty (60) days after
the parties submit the same for decision or resolution.

“The Council shall have the power to issue writs of execution
and enforce its decisions with the assistance of local or national police
agencies.

“ART. 89. 
The decisions of the Council on water rights controversies may be
appealed to the Court of First Instance of the province where the subject
matter of the controversy is situated within fifteen (15) days from the date
the party appealing receives a copy of the decision, on any of the following
grounds:  (1) grave abuse of discretion;
(2) question of law; and (3) questions of fact and law.”

For lack of jurisdiction and for nonexhaustion
of administrative remedies, the lower court dismissed the case in its order of July 18, 1977.  Instead of appealing that order of dismissal
to this Court, as prescribed in Republic Act No. 5440, the petitioners filed a
petition for certiorari in the Court of Appeals which dismissed the petition
because the issuance of the writ of certiorari would not be in aid of its
appellate jurisdiction (Abe-Abe vs. Judge Manta, CA-G.R.
No. SP-07103-R, March 31, 1978).

On August 19, 1978,
the same 137 petitioners filed the instant certiorari case for the belated
review of the lower court’s order of dismissal.

We hold that the petition is devoid of merit. It is incontestable
that the petitioners’ immediate recourse is to ventilate their grievance with
the National Water Resources Council which, as already noted, is the
administrative agency exclusively vested with original jurisdiction to settle
water rights disputes under the Water Code and under Presidential Decree No.
424.

That jurisdiction of the Council under section 2(b) of
Presidential Decree No. 424 is reaffirmed in section 88 of the Water Code and
in section 3(d) thereof which provides that “the utilization,
exploitation, development, conservation and protection of water resources shall
be subject to the control and regulation of the government through” the
Council.

It should be noted that article 100 of the Water Code repealed
the provisions of the Civil Code and the Spanish Law of Waters of August 3,
1866 “on ownership of waters, easements relating to waters, use of public
waters and acquisitive prescription on the use of waters, which are
inconsistent with the provisions of the” Water Code.  Article 100 also repealed the Irrigation Law,
Act No. 2152.

It is also noteworthy that section 3(e) of the Water Code
recognizes that “preference in the use and development of waters shall
consider current usages and be responsive to the changing needs of the
country”.

Article 95 of the Water Code recognizes vested rights but
requires that such rights should be registered on or before December 31, 1978.

The Code in its article 20 acknowledges that “the measure
and limit of appropriation of water shall be beneficial use”, a rule found
in the Philippine Bill of 1902 (See Sideco vs. Sarenas, 41 Phil. 80, 82-83).

The Code assumes that it is more expeditious and pragmatic to
entrust to an administrative agency the settle­ment of water rights disputes
rather than require the claim­ants to go directly to the court where the
proceedings are subject to unavoidable delays which are detrimental to the
parties.

It is patent that the petitioners did not exhaust their
administrative remedy.  Their complaint
should have been lodged with the National Water Resources Council whose
decision is reviewable by the Court of First Instance
as indicated in the aforequoted sections 88 and 89 of
the Water Code.

If a litigant goes to court without first pursuing his
administrative remedies, his action is premature or he has no cause of action
to ventilate in court.  His case is not
ripe for judicial determination (Aboitiz & Co.,
Inc. vs. Collector of Customs, L-29466, May 18, 1978, 83 SCRA
265, 271).

“When an adequate remedy may be had within the Executive
Department of the government, but nevertheless, a litigant fails or refuses to
avail himself of the same, the judiciary shall decline
to interfere.  This traditional attitude
of the courts is based not only on convenience but likewise on respect:  convenience of the party litigants and
respect for a co-equal office in the government.  If a remedy is avail­able within the
administrative machinery, this should be resorted to before resort can be made
to (the) courts.” (Cruz vs. Del Rosario, 119 Phil. 63, 66.)

 The rule on exhaustion of
administrative remedies before resorting to the court means that there should
be an “orderly procedure which favors a preliminary administrative sifting
process, particularly with respect to matters peculiarly within the competence
of the administrative agency, avoidance of interference with functions of the
administrative agency by withholding judicial action until the administrative
process has run its course, and prevention of attempts ‘to swamp the courts by
a resort to them in the first instance’” (2 Am Jur
2nd 428; Antonio vs. Tanco, Jr., L-38135, July 25,
1975, 65 SCRA 448, 454).

WHEREFORE, the petition is dismissed with costs against
the petitioners.

SO ORDERED.

Fernando, Acting C.J., Antonio,
Santos, and Abad
Santos, JJ.,
concur.

Barredo and
Concepcion, Jr., JJ., are abroad.