December 23, 1999
DAR OPINION NO. 81-99
MS. EMMA CONNIE R. ASIS
MS. AVE MARIA BORJA
MS. JINNY P. GLORIOSO
Municipal Agrarian Reform Officers of
Daet/Talisay, Camarines Norte
DAR-Municipal Office
Daet, Camarines Norte
Dear MAROs Asis, Borja, Glorioso:
This refers to your letter requesting for opinion on the following issues:
1) Whether or not a landowner who has already sold or disposed of his 5-hectare retained area can subsequently acquire another five (5) hectares of agricultural land on the ground that he is now considered landless and that no such prohibition is provided in R.A. No. 6657?
2) Whether or not an agricultural land donated by its owner to DECS after 15 June 1988 to be used as a school site could be considered as portion of the landowner's retained area?
3) Whether or not a local government unit can acquire agricultural lands of more than five (5) hectares after 15 June 1988 through a Deed of Donation from one landowner? Is the area donated to the LGU not also be considered as the retention of the landowner?
4) Is it a requirement in applications for DAR Clearance under DAR Administrative Order No. 01, Series of 1989 that a vendee be made to submit a Certification of his aggregate landholdings as of the date of the transaction sought to be cleared aside from the same Certification as of 15 June 1988 to that effect? If this is so, has the said Administrative Order been revised or amended or was there any opinion rendered by the DOJ to that effect? What is the relevance of such certification?
5) Is a party to an administrative case pending investigation entitled to a copy of the investigation report prepared by the MARO or Legal Officer for purposes of submitting his comment or opinion thereon on the ground of compliance with due process clause?
The pertinent provisions of Republic Act No. 6657 applicable to the first four issues you raised are the following, quote:
"SECTION 6. Retention Limits —
. . . in no case shall retention by the landowner exceed five (5) hectares. . .
xxx xxx xxx
Upon the effectivity of this Act, any sale, disposition, lease, management contract or transfer of possession of private lands executed by the original landowner in violation of this Act shall be null and void: Provided, however, That those executed prior to this Act shall be valid only when registered with the Register of Deeds within a period of three (3) months after the effectivity of this Act. Thereafter, all Registers of Deeds shall inform the Department of Agrarian Reform (DAR) within thirty (30) days of any transaction involving agricultural lands in excess of five (5) hectares."
"SECTION 70. Disposition of Private Agricultural Lands. — The sale or disposition of agricultural lands retained by a landowner as a consequence of Section 6 hereof shall be valid as long as the total landholdings that shall be owned by the transferee thereof inclusive of the land to be acquired shall not exceed the landholding ceilings provided for in this Act.
Any sale or disposition of agricultural lands after the effectivity of this Act found to be contrary to the provisions hereof shall be null and void."
Anent your first query, where the sale or disposition of agricultural lands retained by a landowner as a consequence of Section 6 of R.A. No. 6657 is valid, there appears to be no legal impediment for such landowner to subsequently acquire another agricultural land provided, however, that, in all cases, the legally mandated 5-hectare aggregate landownership ceiling be observed.
Anent your second query, the area donated to DECS cannot be taken from that part of the agricultural land of the landowner in excess of the 5-hectare retention limit which is subject for acquisition and redistribution to qualified beneficiaries under the Comprehensive Agrarian Reform Program (CARP). In other words, a landowner could only validly donate or dispose that which constitutes part of his retained area and the rest shall be covered under CARP. Thus, the donated portion forms part of his retained area.
Anent the third issue, we see no obstacle for a local government unit to acquire agricultural lands if the intended purpose is for public use or welfare. The Supreme Court held in the case of Province of Camarines Sur vs. Court of Appeals, 222 SCRA 173, that local government units can expropriate agricultural lands without prior authority from the Department of Agrarian Reform as the determination of the public use of the property subject for expropriation is considered an expression of legislative policy. The Supreme Court further held that neither the Local Government Code nor the Comprehensive Agrarian Reform Law requires a local government unit to secure approval of the Department of Agrarian Reform as a condition precedent to institute the necessary expropriation proceedings. The ruling laid down by the Supreme Court is generally applicable when an agricultural land is expropriated by or donated to a local government unit. However, considering that the instant query involves a land transaction through a Deed of Donation, the donor can only validly donate that which is within his retained a Deed of Donation, the donor can only validly donate that which is within his retained area in consonance with the provisions of Sections 6 and 70 of R.A. No. 6657.
Anent the fourth issue, DAR clearance is still necessary before the sale could be effected to foreclose possible circumvention of the CARL pursuant to Section 6 (4th paragraph), 70 and 73 (a) of R. A. No. 6657, as implemented by DAR Administrative Order No. 1, Series of 1989.
Your last query should be resolved in the negative. Memorandum Circular No. 25, Series of 1995 provides for the observance of measures to uphold the integrity and confidentially of inter-office communications and draft resolution of cases involving agrarian reform law implementation and personnel discipline. Specifically, item 1 of said memorandum circular provides that investigation reports, transmittal slips, memoranda, indorsement and other communications stating the action taken or recommendations of the officers shall be treated as confidential. Pursuant thereto, a party to an administrative case is thus not entitled, as a rule, to a copy of an investigation report. Attached for your further information is a copy of Memorandum Circular No. 25, Series of 1995.
We hope to have clarified the matters with you.
Very truly yours,
(SGD.) FEDERICO A. POBLETE
Undersecretary for Legal Affairs, and Policy and Planning
Copy furnished:
Director Dominador B. Andres
DAR-Region V
Tanchuling Building, Lakandula Drive
Gogon, Legazpi City
PARO Augustia Villagracia
DAR-Provincial Office
Basud, Camarines Norte