[O.P. Case No. 98-A-8240.  May 29, 1998.]

IN RE: APPLICATION FOR CONVERSION OF PRECIOSA AND AGUSTINA GARCIA, applicants-appellants.

D E C I S I O N

          This refers to the appeal filed by Preciosa and Agustina, both surnamed Garcia, thru counsel, from the Order of the Secretary of the Department of Agrarian Reform (DAR), dated September 24, 1997 denying the motion for reconsideration of a previous order dated October 7, 1996, dispositive portion of which, reads:

          "In view of the foregoing, this Office finds that the aforementioned application for conversion cannot be given due course on account of violation of the provision stipulated in Section XVIII of the DAR Administrative Order No. 12, Series of 1994, which states that: Pursuant to Section 73 and 74 of RA No. 6657, any person who knowingly or willfully converted any agricultural land without the approval of the DAR shall be subject to criminal prosecution as provided for under the joint DAR-DOJ Administrative Order No. 4, Series of 1993, Applications covering such areas, shall be summarily disapproved and the land shall be placed under the CARP and distributed to qualified FB's.

          "WHEREFORE, premises considered, the application for land use conversion filed by Preciosa B. Garcia and Agustina B. Garcia, covered by TCT Nos. T-270126, T-264742, T-264743, T-264744 and T-264746 with an aggregate area of 64.0737 hectares, located in Latian, Mapagong, Calamba, Laguna, is hereby DISAPPROVED."

          As found by the DAR in its Order dated October 7, 1996 the factual background of the case is as follows:

          "This pertains to the application for land use conversion filed by Preciosa B. Garcia and Agustina B. Garcia of five (5) parcels of land covered by TCT Nos. T-270126, T-264742, T-264743, T-264744 and T-264746 with an aggregate area of 64.0737 hectares, located in Latian, Mapagong, Calamba, Laguna.

          "Per report of the investigation conducted by the RCLUPPI, on the subject property, the area is found within the industrial zone. It is untenanted but there are 45 reported occupants who lodged a protest over the property applied for conversion. A case on protest is pending with the DARAB. It was also indicated that Development has been on-going in the area. Moreover, a Notice of Acquisition has been issued by the MARO to the property dated 23 April 1993.

          "The PARC Land Use Technical Committee (PLUTC) Inspection Team composed of representatives from the DA, DENR and the PARC Secretariat conducted an ocular inspection of the property on 23 July 1996. Below are the findings of the Team on the property:

"1.     The five (5) parcels applied for conversion are in one contiguous area with flat topography and is traversed by the South Superhighway;

"2.     The subject landholdings are situated in an area where the dominant land use of the surrounding area is industrial;

"3.     Huge piles of scraped top soil are scattered all over the area with grasses profusely growing on these piles were observed. The Team agreed that these big mounds of top soil resulted from a deliberate act to render the land unproductive. This finding verifies the DA's report that the soil of the area has been altered resulting to poor soil condition and exposure of the parent materials;

"4.     Development of road networks is on-going on the property while the construction of a huge building adjacent to the bridge that cuts across the South Superhighway is also on-going during the inspection. This observation confirms the RCLUPPI's findings that development has been going on in the area;

"5.     It was stated in the report submitted by the RCLUPPI that a Notice of Acquisition has been issued on the subject landholding. During the ocular inspection, however, it was verified with the MARO that a Notice of Coverage instead of a Notice of Acquisition, has been issued/served to the owners of the landholdings;

"6.     The MARO informed the Team that aside from the 13 tenants who were given disturbance compensation, there were other groups who were compensated by the landowners. It was explained, however, that the DAR cannot establish whether those who were compensated were the rightful tenants/beneficiaries of the landholdings, since in the past the DAR was not allowed to enter the subject property;

"7.     It was verified during the inspection that a protest has been filed by the Samahan ng Magsasaka ng Timog Katagalugan, Inc. with the DARAB, and this protest is still pending in this Office.

          "The Team, based on the results of the ocular inspection conducted, recommended the disapproval of the subject property on the ground of premature development/conversion.

          "Based on an in-depth review of the PARC Secretariat on the Land Use Conversion Folder (LUCF) of the said property, the Certificate of Zoning Conformance is not sufficient. The proponent submitted only a copy of the Municipal Ordinance No. 93-023 Series of 1993 providing for the reclassification of the subject property. The Municipal Ordinance should serve as an attachment to support the above cited document and should not be construed as the Certificate of Zoning Conformance issued by the Zoning Administrator, during the inspection, the MARO gave the Team a copy of the certificate issued by the HLRB dated 26 November 1993, stating among others that the landholdings are within the medium intensity industrial zone of the land use map of Calamba, Laguna per HLRB Resolution No. R-28 dated 10 July 1981. Upon review of the said document, it certifies only two (2) TCTs, i.e., TCT Nos. T-270126 and T-264742 covering a total area of 38.2822 hectares. The three (3) other parcels of land covering an aggregate area of 25.9717 hectares were not included in the certification.

          "The RCUPPI recommended the conditional approval of the subject property based on the result of the ocular investigation conducted.

          "The CLUPPI in its Meeting held on 30 May 1996 recommended the disapproval of the subject property on the ground of premature development/conversion.

          "The PARC Land Use Technical Committee (PLUTC), during its 38th Meeting held on 14 August 1996, deliberated the subject application for conversion and recommended for its disapproval on the basis of premature development that has taken place in the area and the existence of a farmer's protest which remains unresolved up to the present."

          Citing Section XVIII of the DAR Administrative Order No. 12, Series of 1994, the DAR Secretary disapproved the application for land use conversion of herein appellants on the ground of premature development and the protest of farmer-claimants pending with the Department of Agrarian Reform Adjudication Board (DARAB), hence this appeal.

          Appellants assigned the following errors in their appeal:

1.      THAT THE HONORABLE DAR SECRETARY ERRED IN HOLDING THAT THE PLAINTIFFS AND INTERVENORS IN DARAB CASE NO. IV-LA-0397-95 ARE "POTENTIAL BENEFICIARIES" AND "PROTESTING FARMERS";

2.      THAT THE HONORABLE DAR SECRETARY ERRED IN HOLDING THAT THE RECLASSIFICATION OF THE PROPERTIES HAPPENED ONLY IN 1993 WHILE THE COMPREHENSIVE AGRARIAN REFORM LAW WAS ENACTED IN 1988 AND THEREFORE THE COVERAGE OF THE PROPERTIES UNDER AGRARIAN REFORM IS INEVITABLE;

3.      THAT THE HONORABLE DAR SECRETARY ERRED IN HOLDING THAT THE MUNICIPAL ORDINANCE NO. 93-023 SERIES OF 1993 WAS NOT APPROVED BY THE SANGGUNIANG PANLALAWIGAN AND HENCE, NOT EFFECTIVE.

4.      THAT THE HONORABLE DAR SECRETARY ERRED IN HOLDING THAT THE DECISION IN DARAB CASE IV-LA-0397-95 HAS BEEN APPEALED AND REMAINS UNRESOLVED.

          Appellants claim that the plaintiff-intervenors in the DARAB case are not tillers of the land or even farmworkers; that according to the Honorable Adjudicator, their physical presence on the properties in question which is clearly for residential purposes only upon mere tolerance of the defendants-owner will not operate to confer upon them any preferential rights entitled to judicial protection under existing Agrarian Laws; that there is a distinction between reclassification and conversion; that reclassification is a legislative act of the Sangguniang Bayan or strictly policy-making while conversion is an executive or administrative act or strictly one of policy implementation; that DAR may allow or disallow conversion, subject to policies laid down by Congress, but only for those lands that neither Congress itself or the Local Sanggunian had already reclassified or zoned; that the Sangguniang Panlalawigan of Laguna has adopted a resolution approving Municipal Ordinance No. 93-023, Series of 1993; that the decision in DARAB Case No. IV-LA-0397-95 was rendered on December 26, 1996; that on February 26, 1997, counsel for plaintiffs filed a notice of appeal, while intervenors filed a notice of appeal on January 27, 1997; and that when the parties were required to file their memorandum, they did not comply, hence on July 10, 1997, appellants filed a motion to dismiss appeal.

          With respect to the first and fourth assigned errors, record shows that the Decision dated December 26, 1996 of the Regional Adjudicator Region IV, Department of Agrarian Reform Adjudication Board (DARAB), in DARAB Case No. IV-LA-0397-95 entitled Samahan ng Magsasaka ng Timog Katagalugan, Inc., represented by its President Romulo M. Carina, Plaintiff, versus Pretines Real Estate Development & Management Corp., et al., Respondents, states:

          "Unfortunately for plaintiffs members and Intervenors as well, they may not so easily lay claim to that distinct privilege of being identified as potential CARP beneficiaries vis-à-vis the properties in question as the ensuing discussion will show.

          "It will be recalled that in 1992, a census of actual occupants and potential FBs on the lands in dispute was precipitated by the move of SALAMAT-KASAMA organization led by Feliciano Matienzo to have the same subjected to CARP coverage as embodied in their Petition filed with the Office of the local MARO on November 3, 1992 (Vide, Annex '4' Public Defendants Answer) which was favorably acted upon (Vide, Annex '1', ibid). This in turn triggered the filing by the Defendants Garcias of an application for exemption from CARP coverage covering among the properties in question which was partially granted to the extent of 41.2321 hectares only out of a total area of 105.3057 hectares (Vide, Annex 'C', Private Defendant's Answer).

          "Based on the aforementioned census, the Defendants owners were able to negotiate an amicable settlement with three (3) groups to wit:

xxx                    xxx                    xxx

          "It is significant to note that based on the two (2) lists totalling 69 actual occupants submitted by the MARO pursuant to an ocular inspection of the subject premises conducted in compliance with the Orders of November 20, 1993 and January 12, 1996 (Vide, Exhibits 'B', 'B-1' and 'B-2' for Plaintiff). 22 were found to be related one way or the other to the 13 recognized tenants and the previously censused 108 occupants who have all been paid the proper disturbance compensation and/or whose claims were already amicably settled (Vide, Exhibits '2' to '2-77' for Private Defendants).

xxx                    xxx                    xxx

          "The rest are complete strangers to the Defendants-Owners which can only lead to the inevitable conclusion that they must have gained access to the subject properties only after the 1992 census (Vide, TSN, Hearing of February 2, 1996, pp. 12-30) and are but mere speculators who have forfeited by their acts of forcible entry or illegal detainer, any benefits afforded by the Agrarian Reform Program . . ..

xxx                    xxx                    xxx

          "From the foregoing recitals of facts, it can thus be readily gleaned that the Plaintiff's members as well as Intervenors are completely bereft of any legal standing or personality to pursue the instant case. Whatever rights they may have acquired vis-a-vis the subject properties have already been lost or bargained away by means of their predecessors-in-interest. Their physical presence on the properties in question which is clearly for residential purposes only and upon mere tolerance of the defendants-owners will not operate to confer upon them any preferential rights entitled to judicial protection under existing agrarian laws."

          With these findings, and although the motion to dismiss filed by the respondents on the ground of failure of plaintiffs to file the required memorandum by DARAB after more than five (5) months has not been acted upon or finally decided, evidently this Office cannot agree that they may still be considered as potential beneficiaries. More so with the "other potential beneficiaries" mentioned in the DAR Order of September 24, 1997. To do so will be to bargain away these rights to them gratis et amore, which were denied to those who were in some way or another connected to the properties in question.

          Anent the second and third errors, and in order to counteract the holding of the DAR Secretary that the reclassification of the properties happened only in 1993 while the Comprehensive Agrarian Reform Law was enacted in 1988 and therefore the coverage of the properties under agrarian reform is inevitable, appellant submitted certified true copies of two (2) certifications of the Director, Engr. Alfredo M. Tan II, Housing and Land Use Regulatory Board dated November 25, 1993 and November 26, 1993, respectively, which reads:

I.

          "This is to certify that the parcels of land enumerated below, with a total land area of 257,914 square meters situated at Barangay Mapagong, Calamba, Laguna are within the Medium Intensity Industrial Zone (1-2) of the Land Use Map of Calamba, Laguna per HLRB Resolution No. R-28 dated 10 July 1981.

          "This is to further certify that the said uses is within the Special Planning District under Municipal Ordinance No. 6 Series of 1977, as amended by Zoning Ordinance No. 9 Series of 1981.

TCT NO.                                  LOT NO.                                     AREA
                                                                                                      (sq.m.)

T-264743                                   1688                                          219,705

T-264744                                   4563                                            28,188

T-264746                                   4564                                            10,021

                                                                                                                                   ——————

                                                   Total                                            257,914

II.

          "This is to certify that the parcels of land (Lot No. 1686 and Lot No. 1685-X of the Calamba Estate, GLRO Rec. No. 8518) situated at Barangay Mapagong, Calamba, Laguna with a total land area of 382,822 square meters technically described under TCT Nos. T-270126 and T-264742 are within the Medium Intensity Industrial Zone (1-2) of the Land Use Map of Calamba, Laguna per HLRB Resolution No. R-28 dated 10 July 1981.

          "This is to further certify that the said uses is within the Special Planning District under Municipal Ordinance No. 6 Series of 1977, as amended by Zoning Ordinance No. 9 Series of 1981." (Emphasis ours).

          With the first certification, it had been established that the properties covered by TCT Nos. T-264743, T-264744 and T-264746 situated at Barangay Mapagong, Calamba, Laguna, with a total land area of 25.7914 hectares are within the Medium Intensity Industrial Zone (1-2) of the Land Use Map of Calamba, Laguna per HLRB Resolution No. R-28 dated July 10, 1981.

          The same is true with the second certification which attests to the fact that the parcels of land under TCT Nos. T-270126 and T-264742 with a total land area of 38.2822 hectares and situated at Barangay Mapagong, Calamba, Laguna fall also within the Medium Intensity Industrial Zone (1-2) of the Land Use Map of Calamba, Laguna per HLRB Resolution No. R-28 dated July 10, 1981.

          Considering that the reclassification of the land from agricultural to industrial was made as early as 1981, there can be no violation of Section XVIII of DAR Administrative Order No. 12, Series of 1994 in relation to Sections 73 and 74 of Republic Act No. 6657, even if there was development. The parcels of land in question are therefore outside the coverage of the Comprehensive Agrarian Reform Program.

          WHEREFORE, premises considered, the Orders dated October 7, 1996 and September 24, 1997 are hereby SET ASIDE and the application for land use conversion filed by appellants APPROVED.

          SO ORDERED.

          Manila, Philippines.

By authority of the President:

(SGD.) ALEXANDER P. AGUIRRE

Executive Secretary

Copy furnished:

Atty. Eladio S. Pasamba

Department of Agrarian Reform