December 9, 2003
DAR OPINION NO. 24-03
MEMORANDUM
TO : Onofre Q. Lecitona, Jr.
Internal Auditor
Department of Agrarian Reform
Lingsat, San Fernando City
La Union
SUBJECT : Queries Relative to DAR Administrative Order No. 01,
Series of 2002 (2002 Comprehensive Rules on Land Use Conversion)
This has reference to your request for clarification/opinion relative to the above subject, to wit: AHSEaD
1. Requisite Number of Days Within Which an Applicant is Required to Post a Performance Bond
Section 26, Article III (Procedures) of DAR Administrative Order No. 01, series of 2002 pertinently provides:
"Section 26. Performance Bond. — Within five (5) days from receipt of a copy of the Conversion Order, the applicant shall post a performance bond in the form of either of the following . . . ."
On the other hand, Section 33.2, Article V (Issuance of Conversion Order and its Effects) of the same Administrative Order provides:
"Section 33. Conditions of Conversion Order. — The approval of the application for conversion shall be subject to the following conditions:
xxx xxx xxx
Section 33.2. Within fifteen (15) days from receipt of the Conversion Order, the landowner shall post a performance bond in accordance with Sections 25 or 26 hereof."
Basic is the rule in statutory construction that where there is a particular or special provision and a general provision in the same statute, and the latter in its most comprehensive sense would overrule the former, the particular or special provision must be taken to effect only the other parts of the statute to which it may properly apply. In other words, the particular or special provision is construed as an exception to the general provision.
Here, we could infer that Section 26 is the special provision regarding the posting of performance bond while Section 33 is the general provision, in which case the former shall prevail. Thus, an applicant for conversion should post a performance bond within five (5) days from receipt of a copy of the conversion order.
2. Effect of Failure to Comply with the Conditions Enumerated in Section 33 (Conditions of Conversion order) of Article V (Issuance of Conversion Order and its Effects), Particularly the Period Within Which the Applicant Must Submit Documents to the Regional Center for Land Use Policy Planning and Implementation (RCLUPPI)
Pertinent to the above issue are the following provisions of DAR Administrative Order No. 01, series of 2002:
Section 47. Grounds. — The following acts or omissions shall warrant revocation of the Conversion Order:
xxx xxx xxx
47.3. Non-compliance with the conditions of the Conversion Order. (emphasis supplied)
Section 61. Administrative Sanctions. — The DAR may impose any or all of the following sanctions after determining, in an appropriate administrative proceeding, that a violation of these Rules has been committed:
61.1. Revocation or withdrawal of the authorization for land use conversion;
61.2. Blacklisting of the applicant, developer or representative;
61.3. Automatic disapproval of pending and subsequent conversion applications that the offender may file with the DAR;
61.4. Issuance of cease and desist order by the Secretary or Regional Director, as the case may be, upon verified reports that premature, illegal or unauthorized conversion activities are being undertaken; or
61.5. Forfeiture of cash bond or performance bond." (emphasis supplied)
Given the above provisions, the time frame stated in the conditions of the Conversion Order must be complied with. Otherwise, corresponding sanctions could be imposed, as may be warranted.
3. Approving Authority of the Regional Director for Applications Involving Lands With an Area Less Than or Equal to Five (5) Hectares
Concerning the third issue, may we invite your attention to the following provisions of DAR Administrative Order No. 01, series of 2002, particularly the last sentence of Section 46 and Section 47.1, quote:
"Within the DAR, only the Secretary may resolve petitions that question the jurisdiction of the recommending body or approving authority." HSEIAT
"Section 47. Grounds. — The following acts or omissions shall warrant revocation of the Conversion Order:
47.1. Lack of jurisdiction of the approving authority."
On the basis of the above provisions, we could infer that since there was concurrence by no less than the Secretary himself (who, within the DAR, has the power to resolve questions on jurisdiction of the approving authority) of the designation of ARDO Renato B. Alano as OIC for DAR Region I by way of Special Order No. 466, series of 2002 (Designation of OIC for DAR Region I), then it follows that the signing of the conversion orders (which was in keeping with the rationale of the issuance of Regional Special Order No. 95, Series of 2002 signed by Regional Director Wilfredo B. Leaño, that is, "In the interest of the service and in order to ensure the smooth flow of operation in the region" was in order and in accordance with Section 12.1 of DAR Administrative Order No. 01, series of 2002. There was, therefore, no want of jurisdiction as would warrant revocation of the conversion orders.
For us to opine otherwise may result in complications and may have unsettlings effects in the orderly administration and operation of the powers and functions of the Department (that is, if we are to revoke/re-open the two (2) conversion orders on the ground of lack of jurisdiction).
We hope to have clarified the matters and please be guided accordingly.
(SGD.) RICARDO S. ARLANZA
Undersecretary for Policy, Planning and
Legal Affairs Office