November 15, 1999
DAR OPINION NO. 75-99
OTHELO C. CLEMENT, CESO IV
OIC-Regional Director
DAR Region VI
Iloilo City
Dear Director Clement:
This refers to your request for legal opinion on the matter of VOS withdrawal on the ground of retention, specifically on the following issues, to wit:
1. Legal interpretation of the provision of Section 6, R.A. No. 6657 vis-a-vis the provisions of DAR Administrative Order No. 6, series of 1997, in the light of Supreme Court rulings in Bagatsing vs. Committee on Privatization, 246 SCRA 334 and Land Bank of the Philippines vs. Court of Appeals, 249 SCRA 149; and
2. The jurisdiction of the Regional Director over cases of VOS withdrawal when what is sought to be withdrawn is only an area of five-hectare or less out of the aggregate original area, subject of VOS, which is more than ten (10) hectares, thus, within the jurisdiction of the USEC-FOG or the Secretary.
You stated that pending for resolution before your Office are applications for VOS withdrawal on the ground of retention and one thereof has the following facts: that a landowner offered 120 hectares of landholding under the VOS scheme; that he now withdraws five (5) hectares there from on the ground of retention; that the VOS and the withdrawal were made after the effectivity of DAR Administrative Order No. 6, series of 1997; and that the VOS area is part of the Land Acquisition and Distribution Target, hence, an imperative need for a categorical guideline so as not to hamper the implementation.
Relative to the first issue, it is an elementary rule in administrative law that administrative regulations and policies enacted by administrative bodies interpretative of the law that was entrusted them to enforce have the force and effect of law and are entitled to great respect. They have in their favor a presumption of legality (Ramon A. Gonzales vs. LBP and CA, G.R. No. 76759, March 22, 1990). However, administrative orders should not defeat the purpose for which a law (in this case, Republic Act No. 6657) was enacted. We thus agree with your opinion that DAR Administrative Order No. 6, series of 1997, which is an implementing rule should not be interpreted in a manner in conflict with the provision of Section 6 of R.A. No. 6657, on retention right. A landowner then who has voluntary offered his land should still be allowed to avail of the substantive right of retention that was conferred him under the forecited Section 6.
Moreover, Administrative Order No. 11, Series of 1990, particularly Item III.D.2 thereof, provides that a landowner who voluntarily offered his retained area for CARP coverage may be allowed to withdraw his offer.
Likewise, DAR Memorandum Circular No. 2, Series of 1998 (Compulsory Acquisition (CA) of Landholdings Covered by Voluntary offer to Sell (VOS)), a more recent guideline relative to DAR Administrative Order No. 6, series of 1997, expressly acknowledges the retention right of a landowner who has voluntarily offered his land when it provided that:
"3. If after 15 days these documents have not been received, inform the LO that the property will be acquired under CA, that he/she may choose or pinpoint his/her retained area, otherwise, the DAR will choose his/her retained area (Sec. 6, R.A. 6657), and that he/she will no longer he entitled to an additional 5% cash payment (Sec. 19, RA 6657)." (emphasis and emphasis supplied)
Regarding the second issue, the determining criterion is the size of the area under VOS and not the size of the area being sought to be withdrawn. The latter is but an incident of the former.
We hope to have clarified the matters with you.
Very truly yours,
(SGD.) FEDERICO A. POBLETE
Undersecretary for Legal Affairs, and Policy and Planning