February 8, 1994

DAR OPINION NO. 11-94

Hon. Edmundo V . Mir

Undersecretary, DPWH

Bonifacio Drive, Port Area

Manila

Dear Usec. Mir:

      This has reference to your letter requesting for clarification regarding the financial assistance due the tenants/farmworkers affected by the expropriation of certain agricultural lands traversed by the Luzon Expressway Extension Project from Sto. Tomas to Batangas City. Specifically, you wish to be informed which law — R.A. 3844 or E.O. 1035 — governs the financial assistance to be granted to displace tenants or farmworkers in expropriation cases.

      Section 36 (1) of RA 3844, as amended, reads:

"SECTION 36.        Possession of Landholding; Exemptions. — Notwithstanding any agreement as to the period or future surrender of the land, an agricultural lessee shall continue in the enjoyment and possession of his landholding except when his dispossession has been authorized by the Court in a judgment that is final and executory if after due hearing it is shown that:

(1)     The landholding is declared by the Department head upon recommendation of the National Planning Commission, to be suited for residential, commercial, industrial or some urban purposes: Provided, That the agricultural lessee shall be entitled to disturbance compensation equivalent to five times the average of the gross harvest on his farmholding during the last five preceding calendar years;"

     The aforequoted provision of RA 3844, providing for disturbance compensation to the agricultural lessee, is given to affected agricultural lessees in cases of legal conversion, i.e. cases where the use of the land for purposes other than agricultural is approved by DAR upon the application of the landowner. Otherwise stated, the disturbance compensation provided in Section 36 (1) of RA 3844 covers cases of legal conversion undertaken at the instance of the landowner. Since expropriation (such as in the Luzon Expressway Extension Project) is undertaken at the instance of the government in exercise of its power of eminent domain, it is not covered by said Section 36 (1) of RA 3844.

    On the other hand, E.O. 1035 clearly provides in Section I thereof that the same covers "all acquisitions of private real properties or rights-of-way (ROW) thereon needed for infrastructure projects and other development projects of the government which are undertaken by any ministry, agency, office or instrumentality of the government including government-owned or controlled corporations and state colleges and universities". Section 18 of the same Executive Order provides for the basis for determining the amount of financial assistance to be given to tenants/farmers of agricultural lands.

    Based on the foregoing, it is submitted that RA 3844 is not the applicable law on compensation to displaced tenants/farmers in expropriation cases but rather E.O. 1035 (unless otherwise modified/replaced).

   We trust we have clarified matters for you.

Very truly yours,

(SGD.) HECTOR D. SOLIMAN
Assistant Secretary
Legal Affairs Office