July 7, 1998
DAR OPINION NO. 79-98
MR. HAROLD A. BERAYO
Chairperson
Davao Fruits Corp. Employees Agrarian Reform
Beneficiaries Association, Inc. (DAFCEARBAI)
Tagum Operations
La Filipina, Tagum, Davao Norte
Dear Mr. Berayo:
This refers to your letter of 28 April 1998 requesting for opinion on the following queries:
1. Based on the statements of the Davao Fruits Corporation (DFC) workers that said lands had been abandoned in 1997 and do not form part of the present plantations operated by DFC, can they now be covered by CARP considering that they are no longer cultivated by the owner?
2. Based on the intent of the owner to have such lands sold to fire victims, is this not an indication that the owner is no longer interested in cultivating them, hence, they should now form part of those lands that can be awarded to farmer beneficiaries (like DARCEARBAI) as the original intent under the Homestead Patent is to have such parcels of land cultivated by the awardee.
3. Based on the application for conversion, it is evident that the owners of the lands are no longer interested in cultivating them, thus defeating the purpose for which said lands were awarded to them. Did the application for conversion have its approval from any of the DAR Offices considering that these are agricultural lands? Is it not that the DAR should approve conversion? Do the resolutions in the barangay and Sangguniang Bayan supersede DAR's authority in approving such conversions and thereafter having it reclassified for non-agricultural use?
As gathered from your letter and per investigation report of MARO Flora S. Espejo, the 20.6307-hectare agricultural land subject of this letter-request for legal opinion is embraced under a Homestead Patent, registered in the name of Geronimo De la Cerna and located at Cuambogan, Tagum, Davao; that it was leased to Davao Fruits Corporation and allegedly cultivated under the growership scheme; that an application for conversion was filed in September 1997 by the Sacred Heart Homeowners Association as represented by Rosela Sol Juvy Balmoria, a fire-stricken victim who belongs to the MISA District Homesettlers Association; that subsequently on 26 January 1998, Municipal Ordinance No. 4, Series of 1998 was passed reclassifying said land from agricultural to non-agricultural use; and that in view of said reclassification by the local government unit; the DFC has returned the subject landholding to the owner thereof. You also state that at present, said land is not tenanted or cultivated by anyone and that the owner is intending to sell it to the fire-stricken residents of MISA District Homesettlers Association of Tagum through the National Housing Authority.
Anent your first and second queries, the law (Section 6, R.A. No. 6657 in relation with DAR Memorandum Circular No. 4, Series of 1991) imposes two conditions for the exclusion of a homestead land from CARP coverage, namely: 1) the original homestead grantee or direct compulsory heir was still the owner of the original homestead at the time of the approval of R.A. No. 6657 (otherwise known as the Comprehensive Agrarian Reform Law or CARL) on 15 June 1988; and 2) the grantee or heir was cultivating the homestead as of 15 June 1988 and continues to cultivate the same. Hence, so long as said conditions are satisfied; the homestead is excluded from CARP coverage. On the other hand, it goes without saying that in case the grantee fails to satisfy either of the conditions enumerated, the homestead land is deemed to fall under the coverage of CARP for redistribution to qualified beneficiaries. However, under said circumstances, the grantee or the heirs can still retain five hectares, and the excess areas shall be covered by CARP. Moreover, it is the mandate of law that the security of tenure of the farmers and farmworkers, if any, shall be respected (3rd paragraph, Section 6, R.A. No. 6657).
Corollary to the aforegoing, worth noting are the provisions of Presidential Decree No. 152 (Prohibiting the Employment or Use of Share Tenants in Complying with Requirements of Law Regarding Entry, Occupation, Improvement and Cultivation of Public Lands, amending for the Purpose Certain Provisions of Commonwealth Act No. 141, As Amended, Otherwise Known as the Public Land Act.), among the pertinent provisions of which are as follows, quote:
"1. It shall be an essential condition in every application for, or grant of, agricultural lands of the public domain under the provisions of Commonwealth Act No. 141, as amended, that the applicant or his transferee shall enter and work upon, improve and cultivate the land by HIMSELF within the periods prescribed for the various mode of concession under the said Act.
2. The employment or use of share tenants in whatever form for purposes of complying with the requirements of the Public Land Act regarding entry, occupation, improvement and cultivation, is hereby prohibited. Any violation hereof shall constitute a ground for the denial of the application, cancellation of the grant and forfeiture of improvements on the land in favor of the government."
It is therefore very explicit that personal cultivation is a condition sine qua non in order that a homestead land may not be covered under CARP, which appears not to be so in the instant case since management of the landowners' land allegedly under the growership scheme could not be considered as personal cultivation as contemplated under the provisions of the aforecited law (i.e., P.D. No. 152).
Anent your third query, it bears stressing here the distinction between conversion and reclassification. Conversion refers to the "change of the current use" of an agricultural land to non-agricultural use which is within the legal jurisdiction of DAR pursuant to the provisions of Section 4 (j) and 5 (l) of Executive Order No. 129-A, Series of 1987, Section 65 of R.A. No. 6657, Section 4 of Memorandum Circular No. 54, Series of 1993 of the Office of the President, Malacañang Administrative Order No. 363, Series of 1997 and DAR Administrative Order No. 07, Series of 1997. On the other hand, R.A. No. 7160 or the Local Government Code speaks of reclassification not conversion. It is submitted therefore that the land use reclassification by the Local Government Unit does not place the subject property outside the purview of the Comprehensive Agrarian Reform Program since it merely specifies how agricultural lands shall be utilized for nonagricultural uses such as residential, industrial, commercial as embodied in the land use plan. In other words, R.A. No. 7160 speaks only of reclassification not conversion which is still within the legal jurisdiction of the Department of Agrarian Reform.
Thank you for communicating with us and we hope to have clarified the matters with you.
Very truly yours,
(SGD.) ARTEMIO A. ADASA, JR.
Undersecretary for Legal Affairs, and Policy and Planning
Copy furnished:
MARO Flora Espejo
DAR Municipal Office
Tagum, Davao Norte
PARO Saturnino Siballuca
DAR Provincial Office
Capitol Site, Pagsabangan Rd.
Mankilam Tagum, Davao Del Norte
Dir. Alejo Duque
DAR Regional Office
Ecoland, Davao City