September 15, 1998

DAR OPINION NO. 94-98

ATTY. ROGELIO ADEVA MENDOZA

J and S Bldg.

104 Kalayaan Avenue,

Diliman Quezon City

Dear Atty. Mendoza:

This has reference to your letter dated 06 August 1998 on behalf of your clients whose properties are being brought under the coverage of the Comprehensive Agrarian Reform Program (CARP).

You state that a Notice of Coverage and Field Investigation have been sent by the Provincial Agrarian Reform Officer (PARO) to your clients; that the ownership of such properties was derived from FREE PATENT given by the government thru the Bureau of Lands under Commonwealth Act No. 141; that said landowners have been in possession of their respective landholdings at the time the same were awarded/generated up to the present; that Section 6 of Republic Act No. 6657 provides in part, quote: "Provided that landowners whose lands have been covered by Presidential Decree No. 27 shall be allowed to keep the area originally retained by them thereunder; Provided, further that original Homestead Grantees or their direct compulsory heirs who still own the original homestead at the time of the approval of this Act shall retain the same areas as long as they cultivate the said homestead"; that the intention of CARL (Section 6) in excluding the two laws (P.D. No. 27 and C.A. No. 141, re: retention limits) under its coverage is to protect limited landholdings previously awarded by government from being expropriated under another program of the government with similar import such as the agrarian reform program; that by the same token, FREE PATENT is given by the Philippine government pursuant to C.A. No. 141, hence, by analogy, the provision of Section 6 of R.A. No. 6657 should be made applicable to Free Patent; and that in view of the foregoing, you are requesting that the subject properties be exempt from the coverage of the CARL.

Please be clarified at the outset that your request may not be given due course under the provisions of Republic Act No. 6657. The broad and encompassing scope of said law so provides that it shall cover, regardless of tenurial arrangement and commodity produced, all public or private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229 including other lands of the public domain suitable for agriculture (Section 4, R.A. No. 6657). The only exemptions therein, and no other, are those lands mentioned under Section 10 of R.A. No. 6657, as amended by R.A. No. 7881; those which are devoted to poultry, swine and livestock pursuant to the Supreme Court Ruling in the Luz Farms case; those which have been classified and approved as non-agricultural prior to 15 June 1988 (effectivity of R.A. No. 6657 — CARL) as ruled under Department of Justice Opinion No. 44, Series of 1990; those which are officially and duly declared as not suitable for agriculture; and those which are classified as mineral, forest, residential, commercial or industrial land as provided for under Section 3 (c) of R.A. No. 6657. To extend or expand the aforesaid exemptions/exclusions, and to further apply by analogy the provisions of R.A. No. 6657, specifically Section 6 thereof as regards Homestead lands vis-a-vis Commonwealth Act No. 141 on Free Patent lands would therefore constitute a violation of the well-entrenched and time-honored principle in our jurisprudence, viz: "Exclusio Unios est Exclusio Alterios" (what the law does not include it excludes). Accordingly, what is not specifically exempted is covered by CARP.

Moreover, even assuming arguendo, without necessarily admitting, that the provision of Section 6 of R.A. No. 6657 on homestead patents could be made to apply by analogy to free patents, the indispensable requirement of PERSONAL CULTIVATION is a condition sine qua non in order that awardees of free patents may retain their landholdings. Said essential requirement of personal cultivation is likewise mandated under the provisions of P.D. No. 152, amending C.A. No. 141 (Public Land Act), which requires that the free patent awardee should cultivate the subject landholding HIMSELF and that the employment or use of share tenants in whatever form for the purpose of complying with the requirements of the Public Land Act as regards cultivation is prohibited. This is so because it is the State's policy and objective to altogether abolish share tenancy which was declared as contrary to public policy (Section 4, R.A. No. 3844, Code of Agrarian Reform). Furthermore, it bears stressing here the State principle that land has a social function and land ownership has a social responsibility, thus, agricultural lands should be turned into their wisest and most productive use for the material upliftment of the many and the prosperity of all. Lastly, worth noting likewise is the State declaration of policy that the agrarian reform program is founded on the right of farmers and regular farmworkers, who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof (Section 2, R.A. No. 6657).

From all the aforegoing, we submit that agricultural lands covered by Free Patents may be covered under CARP (with rights of retention and award to children, if qualified), and more especially so if they are not personally being cultivated by the original awardees or their heirs, to ensure the successful realization of the social justice ideals as envisioned by the State in our Constitution and in the Comprehensive Agrarian Reform Law (CARL).

The aforementioned, notwithstanding, we wish to add however that the foregoing opinion does not constitute a decision in any case which involved or may involve the same issue.

Thank you for communicating with us and we hope to have clarified the matters with you.

Very truly yours,

(SGD.) DANILO T. LARA

Undersecretary for Legal Affairs, and Policy and Planning

Copy furnished:

The Regional Director

DAR — Region IV

E. Rodriguez Memorial Bldg.

Capitol Compound
Pasig City

The Provincial Agrarian Reform Officer

Department of Agrarian Reform

Calapan, Oriental Mindoro

The Municipal Agrarian Reform Officer

Department of Agrarian Reform

Naujan, Oriental Mindoro