January 11, 2000

DAR OPINION NO. 06-00

MEMORANDUM

TO               :       TIBURCIO A. MORALES
                                    PARO II
                                   DAR-Provincial Office
                                   Naval, Biliran

SUBJECT    :     Request of Dr. Juanito A. Sison, President  of The Naval Institute of Technology (NIT), Naval Biliran, For a Five (5) Hectare Shoreland Which is a Portion of Busali Farm in Biliran, Biliran

This is in connection with your letter dated 15 December 1998 regarding the request of Dr. Juanito S. Sison, President of Naval Institute of Technology (NIT) for a certain portion of the Busali Farm in Biliran, Biliran (preferably a five (5) hectare lot) situated along the shore for use as Maritime Campus of the College. We observed that such request had been the subject of a Memorandum by the Municipal Agrarian Reform Officer (MARO) dated 17 July 1998. It is reported in said Memorandum that the MARO had conducted an actual inspection and investigation of the area requested by the Naval Institute of Technology. It further states, among others, that there is no more available area to accommodate the request since the areas which are along the coast are fishpond and riceland owned by CARP beneficiaries with CLOAs already distributed, except for an area proposed by the PNP Headquarters Provincial Command subject of an earlier Memorandum of Agreement (MOA) signed by and between the DAR Secretary and DILG Secretary and other concerned officials.

Relative to the report of the MARO as regards the request of the Naval Institute of Technology, you now propose that the area originally turned-over and conveyed in favor of the PNP under the MOA should be cancelled and transferred in favor of the Institute for the following reasons: that the property reserved exclusively for the purpose of constructing the building of the PNP Provincial Headquarters did not materialize; that the PNP built their provincial headquarters in another place and not in the area designated under the MOA; that in case the subject area be ultimately transferred to the NIT, the children of the CARP beneficiaries will largely benefit from it; and that, therefore, by virtue of the above premises, you strongly recommend that the same area be reallocated to the Naval Institute of Technology through a MOA by and between the DAR and NIT.

We regret to state that we cannot give due course to your recommendation or proposal to transfer the property in favor of NIT thru the cancellation of the MOA (earlier executed by and between the DAR-DILG-PNP) for not having been consummated and as a consequence of the non-use of the properly by the PNP. This is so since the property is now virtually owned by the PNP by virtue of the transfer through the MOA made by the DAR in its favor. Thus, we cannot outright cancel the MOA.

However, since the property is allegedly not actually, directly and exclusively used or necessary for the purpose for which it has been reserved under the MOA, the area should it be found to be agricultural or still suitable for agricultural shall be transferred back to the DAR for distribution to qualified agrarian reform beneficiaries. But this would only be after due determination as such by the DAR in coordination with the government agency or instrumentality concerned (DILG-PNP) in whose favor the previous transfer or conveyance was established.

The NIT, if it is a private entity (unlike the PNP which is a government agency), cannot be the subsequent transferee by virtue of a MOA of the same nature as previously executed. Moreover, even assuming that NIT is a government entity, the same could neither be a transferee if the conveyance would eventually vest ownership of the subject area to NIT in a proprietary or private capacity.

From the foregoing, NIT could possibly be a transferee of the proposed area through a MOA only if it is a government entity and the conveyance is for public purpose without prejudice, however, to the rights of affected or potential agrarian reform beneficiaries, if any, and the rightful and effective implementation of the Program.

Please be guided accordingly and we hope to have enlightened you on the matter.

(SGD.) FEDERICO A. POBLETE

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished:

Director Narcigo B. Nieto

DAR-Region VIII

Sto. Niño Extension

Tacloban City

The Municipal Agrarian Reform Officer

DAR-Municipal Office

Naval, Biliran