FIFTH DIVISION
[CA-G.R. SP No. 53174. December 26, 2000.]
PABLO BERENGUER, BELINDA BERENGUER, CARLO BERENGUER, ROSARIO BERENGUER-LANDERS and REMEDIOS BERENGUER-LINTAG, petitioners, vs. DEPARTMENT OF AGRARIAN REFORM and BARIBAG AGRARIAN REFORM COOPERATIVE, respondents.
D E C I S I O N
SANDOVAL GUTIERREZ, J p:
Petition for review assailing the joint order dated April 6, 1999 of the Secretary of the Department of Agrarian Reform (DAR) denying petitioners' "Application star Exclusion" of their landholdings from the coverage of R.A. 6657, otherwise known as the Comprehensive Agrarian Reform Law of 1998 (CARL); and their petition to lift notice of coverage under the same law.
The petition alleges that petitioners are the owners of residential and industrial lands devoted to pasture and livestock raising consisting of 58.0649 hectares located at Bibincahan, Sorsogon, Sorsogon, covered by the following titles:
Remedios Berenguer — Lintag —
TCT Nos. 49393 to 49405; 25275; and 25284.
Carlo Berenguer and Belinda Berenguer—Aguirre —
TCT Nos. 48666; 26087; 26085; 48655 — 48656; 48658 to 48665.
Rosario Berenguer — Landers —
TCT Nos. 28770 to 28786.
Pabro Berenguer —
TCT No. 14998.
Sometime in April, 1998, petitioners received from the Department of Agrarian Reform (DAR) notices of coverage of their landholdings by the Comprehensive Agrarian Reform Program (CARP) pursuant to R.A. 6657.
Petitioners protested the notices of coverage and on October 5, 1998, they filed with the DAR, through Regional Director Percival Dalugdug, Legaspi City, an application for exclusion of their lands from the CARP coverage. They also filed a notice to lift coverage.
During the months of October and November, 1998, the DAR Secretary, without acting on petitioners' application for exclusion, cancelled their titles and extended, not to their workers, but to the members of respondent BARIBAG AGRARIAN REFORM BENEFICIARIES DEVELOPMENT COOPERATIVE (BARIBAG) Certificates of Land Ownership Awards (CLOAs) covering the subject landholdings.
Meanwhile, Regional director Dalugdug denied petitioners' application for exclusion in an order dated February 15, 1999. Whereupon, petitioners seasonably appealed to the DAR Secretary.
On March 9, 1999, pending resolution of petitioners' appeal by the DAR Secretary, respondent BARIBAG (who has not been impleaded in their application for exclusion), filed with the Office of Isabel Florin, Regional Agrarian Reform Adjudicator, Legaspi City, a petition to implement the order dated February 15, 1999 issued by DAR Regional Director Percival Dalugdug denying petitioners' application for exclusion. The petition was docketed as DARAB Case No. V-RC-05-339-99.
On March 15, 1999, Florin issued an implementing writ placing respondent BARIBAG (who is not a party in the exclusion case) in possession of petitioners' landholdings. Forthwith, petitioners filed with her office a motion for reconsideration but was denied outright on March 22, 1999.
On March 24, 1999, petitioners interposed an appeal to the DARAB by filing a notice of appeal with Florin's office. In an order dated April 8, 1999, she merely noted the notice of appeal and issued a writ of possession to Baribag.
Meantime, in his joint order dated April 6, 1999, Acting DAR Secretary Conrado Navarro denied petitioners' appeal from of Regional Director Dalugdug dismissing their application for exclusion and their petition to lift notice of coverage under R.A. No. 6657. The Acting DAR Secretary held:
"Applications for exclusion of properties from the scope of RA 6657 on the basis of Luz must be supported by substantial evidence that these are actually, directly and exclusively devoted to livestock raising. Substantial evidence is here rendered precise by Administrative Order No. 9, Series of 1993 (AO 9). Item III (B) thereof requires that properties shall be considered excluded only if it is established that, as of 15 June 1988, therein existed, for instance, the minimum ratio of one (1) head of cattle to one (1) ha of land and one (1) head of cattle to 1.7815 ha of infrastructure.
Here, the prescribed proportions have not been established. The semestral survey of the Bureau of Agricultural Statistics in Sorsogon reveals that, on the average, only 15 heads of cattle were found within the 58 — ha property saught to be excluded for the period from 1988 to 1992. This evidence has not been rebutted by appellants.
In fact, the certification dated 19 February of the same bureau, which appellants invoked in support of their appeal, reinforces the finding of the Regional director that during the crucial period from July 1988 to January 1998, appellants did not own sufficient heads of cattle as to meet the proportions prescribed under AO 9. Ownership by appellants of 71 heads of cattle in 1977, 86 in 1978, and 56 in 1998 is immaterial as AO 9 requires that the prescribed proportions be in existence as of 15 June 1988 and substantially maintained thereafter. The sworn statement of Eugenio Pura, a farmworker of appellants, is not credible and cannot refute the semestral survey and certification of the Bureau of Agricultural Statistics.
In the determination of whether the subject property is devoted to cattle raising, the Regional Director did not unduly restrict the meaning thereof by requiring proof of exclusivity. Whether the property is being applied to agricultural purposes such as coconut growing is relevant and essential to a complete resolution of the application for exclusion, especially in view of strong evidence that the heads of the property fall short of the number required under AO 9. Proof of exclusivity becomes superfluous only if it has already been that the prescribed ratio of cattle to land and infrastructure exists."
Hence, this petition for certiorari, which we treat as a petition for review, ascribing to the DAR Secretary the following errors:
"I
RESPONDENT DAR SECRETARY HAS JURISDICTION OVER THE SUBJECT PROPERTIES BEING DEVOTED TO PASTURE AND LIVESTOCK AND ALREADY CLASSIFIED AS RESIDENTIAL AND INDUSTRIAL LAND, HENCE, OUTSIDE THE COVERAGE OF REPUBLIC ACT 6657 (COMPREHENSIVE AGRARIAN REFORM LAW). THE GENERATION AND ISSUANCE OF CERTIFICATE OF LANDOWNERSHIP AWARDS (CLOA) ARE THEREFORE, VOID.
II
BEING OUTSIDE THE COVERAGE OF CARL (REPUBLIC ACT 6657), RESPONDENT HON. ISABEL E. FLORIN WHO IS EXERCISING DELEGATED JURISDICTION FROM THE DARAB HAS NO JURISDICTION OVER PETITIONERS' PROPERTIES AS HELD IN KRUS NA LIGAS FARMERS COOP. VS. UNIVERSITY OF THE PHILIPPINES, G.R. NO. 107022, DEC. 8, 1992 WHICH IS SQUARELY IN POINT WITH THE CASE AT BAR."
The main issue in this petition is whether or not the subject landholdings are covered by R.A. 6657.
Petitioners contend that their lands are devoted to cattle raising; and that as early as 1981, they were classified by the Housing and Land Use Regulatory Board (HLURB) as residential and industrial, hence outside the coverage of CARL.
According to the petitioners, the Supreme Court, in Luz Farms vs. the Secretary of the DAR 1, held that it was never the intention of the Constitutional Commission to include livestock and poultry lands as well as commercial, industrial and residential lands within the coverage of the Agrarian Reform Program of the government.
In support of their claim that their landholdings are classified as residential and industrial, petitioners presented in evidence the following documents:
1. Certification dated May 18, 1999 by the HLURB, through Charito Bunagan, Board Secretary, stating, among others, that the Town Plan/Zoning Ordinance of Sorsogon, Sorsogon (classifying Barangay Bibincalan where petitioners' properties are located as residential and commercial area) was approved by the Board (then Human Settlements Commission/Human Settlements Regulatory Commission);
2. An excerpt from the Comprehensive Development Plan of the Municipality of Sorsogon showing that Barangay Bibincahan is part of the Central Business District, hence, petitioners' landholdings in Bibincahan have been classified as residential and industrial; 2
3. Municipal Resolution No. 5 of the Sangguniang Bayan of Sorsogon, series of 1981, expanding the area of the Poblacion to include Barangay Bibincahan, among others; 3
4. Certification by the Office of the Zoning Administrator, Office of the Mayor of Sorsogon, Sorsogon dated August 27, 1997 declaring that petitioners' properties are situated in Barangay Bibincahan within the Poblacion area of the Municipality of Sorsogon. The Certification was signed by Raul Jalmanzar, Deputized Zoning Administrator; 4 and
5. Department of Justice Opinion No. 44, Series of 1990 to the effect that a parcel of land is considered non-agricultural and, therefore, beyond the coverage of the CARP, if it has been classified as residential, commercial, or industrial in the City or Municipality Land Use Plan or Zoning Ordinance approved by the HLURB before June 15, 1988, the effectivity of the CARL.
The DAR, in its manifestation before this Court dated October 21, 1999, states that since the instant petition assails its order in the implementation of the Comprehensive Agrarian Reform Program, it should be given an opportunity to submit its comment on the instant petition.
In its comment, the DAR asserts the presence of some heads of large cattle in petitioners' landholdings of 58.06489 hectares is not sufficient to consider the area as one being used for raising livestock. Moreover, Certification of the HLURB dated May 18, 1999 stating that the Town Plan/Zoning Ordinance (Resolution No. 5 of the Sangguniang Bayan of Sorsogon, Sorsogon) classifying Barangay Bibincahan as non-agricultural area (being part of the Poblacion) approved on September 21, 1978 is an "incomplete document" and has no probative value. The said Ordinance was passed on March 12, 1981. How then could it be approved by the HLURB as early as 1978?
Likewise, the proceeding before Regional Adjudicator Florin was merely for the purpose of implementing the DAR decision which is executory.
For its part, respondent Baribag claims, among others, that petitioners' landholdings are not devoted to cattle raising as found by the DAR Inspection Team; and that their Tax Declarations stating their landholdings as pasture lands are "contrived."
In finding that the subject lands are not devoted to cattle raising, the DAR relied on DAR Administrative Order No. 9, Series of 1993 requiring that properties shall be considered excluded from the coverage of the CARL only if it is established that as of June 15, 1988, the effectivity of the law, therein existed the minimum ratio of one (1) head of cattle to one (1) hectare of land and one (1) head of cattle to 1.7815 hectare of infrastructure.
According to the DAR, on the basis of the semestral survey by the Bureau of Agricultural Statistics in Sorsogon, only 15 heads of cattle were found within the 58 hectare area sought to be excluded for the period from 1988 to 1992, in contravention of DAR Administrative Order No. 9 Series of 1993.
We observe that petitioners' Tax Declarations covering the subject lands show that they have been declared as pasture lands. While respondent Baribag alleges that these Tax Declarations are "contrived," however, evidence to sustain such allegation. It bears stressing that cattles are being raised in the area. This is admitted by the DAR. The fact that their number is insufficient does not mean that the area is not devoted to the raising of livestock. It could be, as aptly stated by the petitioners, that as of June 15, 1988, the livestock farm had sold a number of cows, or that prior thereto, the livestock suffered from pestilence. These incidents could have reduced the number of cattle then being raised at the time the DAR Team inspected the area. Hence, it is not safe to conclude that the farm is no longer devoted to livestock.
Even assuming that the area is not devoted to cattle raising, still it can be excluded from the CARL coverage. Resolution No. 5 passed on March 12, 1981 by the Sangguniang Bayan of Sorsogon, Sorsogon shows that the limits of the Poblacion area of the municipality include, among others, Barangay Bibincahan where the subject lands are situated.
In Hilario vs. Intermediate Appellate Court 5, the Supreme Court held:
"Where land is within the poblacion, the presumption is it is residential, not agricultural. The presumption assumed by the appellate court that a parcel of land which is located in a poblacion is not necessarily devoted to residential purposes is wrong. It should the other way around. A lot inside the poblacion should the presumed residential, or commercial, or non-agricultural unless there is clearly preponderant evidence to show that it is agricultural."
Here, the DAR failed to establish by preponderance of evidence that the area is agricultural.
The DAR, are disregarding petitioners' argument that their landholdings are residential or commercial or industrial being part of the Poblacion, invokes DOJ Opinion No. 44 that a parcel of land is considered non-agricultural and, therefore, beyond the coverage of the CARP, if it has been classified as residential in the City or Municipal Zoning Ordinance approved by the HLURB on June 15, 1988, the effectivity of the CARL.
Here, Resolution No. 5 (or Zoning Ordinance of Sorsogon, Sorsogon) including Bibincahan within the Poblacion was passed on March 12, 1981. The DAR vigorously asserts that it could not have been approved by the HLURB on June 15, 1988.
Suffice it to state that this Court is not bound by the Opinion of the Department of Justice, the same being merely persuasive.
What is significant is that as early as 1981, the lands involved have been part of the Poblacion. There is, therefore, a strong reason to believe, considering the Supreme Court ruling in Hilario, 6 that petitioners' landholdings are non-agricultural.
More importantly, the excerpt from the Comprehensive Development Plan of Sorsogon, Sorsogon 7 shows that Barangay Bibincahan is part of its Central Business District. Thus, petitioners' lands have been classified in the Plan as residential and industrial. Clearly, they are outside the coverage of the CARL.
Assuming that the lands are indeed agricultural, We cannot understand why the DAR awarded them to the members of respondent Baribag and not to the workers in the area, in violation of Section 22 of the CARL, quoted as follows:
"Sec. 22. Qualified beneficiaries. — the lands covered by the CARP shall be distributed as much as possible to landless residents of the same barangay, or in the absence thereof, landless residents of the same municipality in the following order of priority:
a) agricultural lessees and share tenants;
b) regular farmworkers;
c) seasonal farmworkers;
d) other farmworkers;
e) actual tillers or occupants of public lands;
f) collectives or cooperatives of the above beneficiaries; and
g) others directly working on the land.
xxx xxx xxx."
We cannot close the discussion without mentioning Our observation on the actuations of Regional Agrarian Reform Adjudicator Isabel Florin. Just why she issued a writ of execution and eventually a writ of possession in favor of respondent Baribag puzzles Us no end. She knew that Baribag is not a party in petitioners' application for exclusion filed with the Office of DAR Regional Director Percival Dalugdug. Obviously, she never acquired jurisdiction over Baribag. She also knew that petitioners appealed to the DAR Secretary from the order of Regional Director Dalugdug dismissing petitioners' application for exclusion. Clearly, such order was not yet final and executory when she issued the assailed writs of execution and possession. Thus, the writs are void and should be set aside.
WHEREFORE, the assailed joint order of the DAR Secretary dated April 6, 1999 is hereby REVERSED and the writ of execution and writ of possession issued by Isabel Florin, Regional Agrarian Reform Adjudicator, are SET ASIDE. The DAR Secretary is ordered to place the petitioners in possession of their landholdings immediately. Baribag's Certificates of Land Ownership Awards (CLOAS) are ordered CANCELLED. No pronouncement as to costs.
SO ORDERED.
Aliño-Hormachuelos and Asuncion, JJ., concur.
Footnotes
1. G.R. No. 86889, December 4, 1990.
2. Annex "W," Petition, Rollo, p. 325.
3. Annex "X," Petition, Rollo, p. 326.
4. Annex "Y," Petition, Rollo, p. 327.
5. 148 SCRA 573 (1987).
6. Supra.
7. Supra.