[DARCO ORDER NO. EXE-1102-041.  February 25, 2011.]

IN RE: APPLICATION FOR EXEMPTION PURSUANT TO ADMINISTRATIVE ORDER NO. (AO) 4, SERIES OF 2003, AFFECTING LOT NO. 1719-C LOCATED AT BARANGAY SAN PEDRO, IROSIN, SORSOGON WITH AN AREA OF 0.1082 HECTARE

HEIRS OF SEVERO FREJAS, ROY FREJAS AND GERARDO ACDAL, represented by VICTORIA FOJAS, applicant-appellant,

ORDER

For resolution is an Appeal from the 20 February 2010 Order, issued by Region V Regional Director Ma. Celestina M. Manlañgit-Tam, denying the application for exemption of a parcel of land involving 1,082 square meters located in San Pedro, Irosin, Sorsogon.

The facts of the case are:

On 27 November 2007, an Emancipation Patent (EP) bearing TCT No. TE-3172 covering an area of 16,268 square meters, located in San Pedro, Irosin, Sorsogon, was issued in the name of the Heirs of Severo Frejas. The EP was registered with the Registry of Deeds of Sorsogon Province on 29 November 2007. The land was already fully paid as of 26 July 1989 as shown in the cancellation of encumbrance under Entry No. 1620 appearing in page B of the title.

On 29 September 2009, a Cease and Desist Order was issued by Regional Director Tam enjoining Gerardo Acdal, the Heirs of Severo Frejas and Boy Frejas and any person acting for and in their behalf from undertaking all or further development on the 1,082 square meters portion of the land. Apparently, the heirs of Severo Frejas were undertaking earth moving activities on said portion for a gasoline station without any conversion order.

The Heirs of Severo Frejas moved for reconsideration of the 29 September 2009 Order on the ground that the rules on conversion do not apply to them because the subject land has been reclassified as being within the residential zone per the Town Plan and Zoning Ordinance ratified by then National Coordinating Council for Town Planning, Housing and Zoning dated 21 September 1978. They further alleged that they were already preparing their application for Exemption Clearance pursuant to DAR Administrative Order (A.O.) No. 4, Series of 2003.

On 10 November 2009, the Heirs of Severo Frejas filed an application for Exemption from CARP Coverage under A.O. No. 4, Series of 2003 pursuant to Department of Justice (DOJ) Opinion No. 44, Series of 1990, of the 1,082 square meters portion of TCT No. TE-3172. All the documentary requirements specified under A.O. No. 4, Series of 2003 were duly submitted and complied with.

Among the requirements submitted was the HLURB Certification issued on 28 September 2009 by Atty. Richard I. Manila, Officer-in-Charge, Region V, stating that the 16,268 square meters land is within Commercial Zone per Comprehensive Land Use Plan of Irosin, Sorsogon adopted per Resolution No. 134-99 dated October 20, 1999. Resolution No. 134-99 was enacted as a Zoning Ordinance per Municipal Ordinance No. 6 (A) and was ratified by the Sangguniang Panlalawigan (SP) through SP Resolution No. 218-01 dated December 20, 2001.

The HLURB certification also stated that the 16,268 square meters was classified as residential zone in the previous Town Plan and Zoning Ordinance ratified then by the National Coordinating Council for Town Planning, Housing and Zoning dated September 21, 1978.

On 24 November 2009, the Regional CLUPPI conducted an ocular inspection of the area. They noted that the 1,082 square meters was idle. The land was covered with grass and shrubs. Likewise, embedded in the property was an underground tank.

As regards the surrounding area, the OCI Team noted that on its north are residential and commercial concrete structures, on the North East, East and South East areas are national roads, part of the South East were commercial areas, on the South was a trail, and the South, South West and North West was agricultural in use, planted with rice and was irrigated.

An opposition to the application was filed by Rosalinda Balmes on the ground that the subject land is beside an irrigation canal which allegedly makes it not subject for conversion. Subsequently, MARO Renato E. Gacias of Irosin, Sorsogon filed a Comment opposing the application for exemption. The opposition was grounded on the fact that the Municipal Zoning Ordinance of Irosin, Sorsogon which reclassified the irrigated riceland for residential purpose, and approved by the Human Settlement Regulatory Commission on 24 September 1980 under Letter of Instruction (LOI) No. 511, has no force and effect because the Certificate of Land Transfer (CLT) covering the subject land was issued to Severo Frejas on 04 June 1974. In addition, the irrigability of the subject land was also noted by the RCLUPPI OCI Team.

Regional Director Ma. Celestina M. Manlañgit-Tam, in an Order dated 12 February 2010, denied the application for exemption. The denial was based on the following grounds: (1) Malacañang Memorandum Circular No. 54, Series of 1993, declares that lands awarded to beneficiaries shall not be affected by any reclassification made by Local Government Units (LGUs); (2) Irrigated ricelands are not exempted pursuant to AO No. 4, Series of 2003; and (3) Lands covered by Presidential Decree (PD) No. 27 are not included in the scope of DOJ Opinion No. 44, Series of 1990.

Hence, the present appeal where the following errors are assigned:

1.         The Regional Director erred in interpreting Malacañang Memorandum Circular No. 54, Series of 1993 relative to Section 20 of RA No. 7160, Section 3 (c) of RA No. 6657, and DOJ Opinion No. 44, Series of 1990;

2.         The Regional Director failed to observe the "Doctrine of Stare Decisis" or adherence to precedents in resolving the issue;

3.         The Regional Director is not consistent in the interpretation of the grounds of protest in application for exemption; and

4.         The Regional Director failed to interpret correctly the DAR issuances as regards exemption of lands.

After a thorough examination of the arguments and counter arguments as well as the documents submitted in this case, We believe that a grant of the application is justified in this case.

It must be stressed that the subject property is a PD 27 awarded land, ownership of which was already transferred to the tenant/farmer beneficiary upon the effectivity of the law. At the time of the death of the tenant-beneficiary, the ownership of the land was then transferred to his heirs in accordance with our Civil law rules on succession. Being the owners of the land, the heirs now come before us to apply for the exemption of a portion of the property in order to maximize the economic viability of the same.

PD No. 27 and Republic Act (RA) No. 6657 are both components of the agrarian reform program of the government. PD No. 27 which took effect on 21 October 1972 covered tenanted rice and corn land only, while RA No. 6657 which took effect on 15 June 1988 covers all agricultural lands including those rice and corn lands which were not covered by PD 27. Clearly, the intent was to eventually cover all agricultural lands as defined in Section 3 (c) of RA 6657, for purposes of the agrarian reform program. The government's agrarian reform program, however, also takes into account instances when there is a change in the nature and use of the land attributable to several factors. Hence, the rules on conversion and exemption, such as DOJ Opinion No. 44, Series of 1990.

DOJ Opinion No. 44 states that "all lands reclassified before the effectivity of CARP shall be exempted from coverage". Corollary thereto, all lands that are already classified as commercial, industrial or residential before 15 June 1988 no longer need any conversion clearance.

While it is true that in this case, the land had already been covered under PD 27, the subsequent reclassifications of the subject land effectively changed the nature of the land from agricultural to residential in 1978 and from residential to commercial in 1999. Obviously, the land ceased to be agricultural in nature even prior to the effectivity of R.A. 6657 on 15 June 1988.

Following DOJ Opinion No. 44, Series of 1990, the heirs of Severo Frejas are no longer required to secure a conversion order before they can proceed with the construction of a gasoline station on the 1,082 square meter portion of their land. To reiterate, the area where the subject land is located has already been reclassified as residential in the Town Plan and Zoning Ordinance of Irosin, Sorsogon as early as 1978. The ordinance was subsequently ratified by the National Coordinating Council for Town Planning, Housing and Zoning on September 21, 1978. Later, the land was further reclassified as within the commercial zone.

Finally, it must be remembered that the application for exemption pursuant to AO No. 4, Series of 2003 was required in order to protect the rights and interest of the tenant-farmers over lands covered by PD No. 27, which might have been vested even prior to 15 June 1988. Since the present application was filed by the tenant-farmer beneficiaries (FBs) themselves, this Office finds no compelling reason to deny the same.

WHEREFORE, premises considered, the appeal is GRANTED. The application for exemption from CARP Coverage pursuant to AO No. 4, Series of 2003, filed by the Heirs of Severo Frejas involving 1,082 square meters, located in San Pedro, Irosin, Sorsogon, is hereby GRANTED, subject to the condition that the DAR reserves the right to cancel or withdraw this Order for misrepresentation of facts integral to its issuance and/or for violation of the law and applicable rules and regulations on exemption/exclusion from CARP coverage.

This Order is issued pro hac vice.

SO ORDERED.

Diliman, Quezon City, February 25, 2011.

(SGD.) VIRGILIO R. DE LOS REYES
Secretary