DOJ OPINION NO. 043, s. 2011
September 1, 2011
Secretary Virgilio R. Delos Reyes
Department of Agrarian Reform
Elliptical Road, Diliman
Quezon City
Dear Secretary Delos Reyes :
This refers to your request for our opinion on whether the Department of Agrarian Reform (DAR) can grant applications for exemption involving irrigated and irrigable lands, i.e., those classified as not subject to and non-negotiable for conversion, reclassified into non-agricultural uses prior to June 15, 1988, the date Republic Act No. 6657, or the Comprehensive Agrarian Reform Law (CARL), took effect.
You state that pursuant to this Department's Opinion (No. 44, s. 1990) to the effect that the authority of DAR to act upon applications for conversion of agricultural lands to non-agricultural uses may be exercised on or after June 15, 1988, previous DAR Administrations had adopted the position that all agricultural lands already classified as commercial, industrial, or residential before said date no longer need a conversion clearance but only an exemption clearance from DAR.
You also say that in another Opinion (No. 181, s. 1990) of this Department and in the Supreme Court ruling in Natalia Realty vs. DAR, 225 SCRA 278, it was pointed out that "agricultural lands coverable under the CARP do not include in its contemplation agricultural lands classified as commercial, industrial, or residential prior to 15 June 1988 for they ceased to be agricultural upon approval of their classification/reclassification as could be inferred from the definition of Agricultural Land in Section 3 (c) of R.A. No. 6657."
Further, you aver that the non-negotiability for conversion of irrigated and irrigable lands was stressed in Administrative Order No. 20, s. 1992, reiterated in Administrative Order No. 363, s. 1997, both of the Office of the President (OP), and underscored anew in Section 22 of Republic Act No. 9700, or the "CARPER (Comprehensive Agrarian Reform Program with Extension and Reforms) Law. TSacAE
It is, however, your position that the aforesaid DOJ Opinion No. 181, s. 1990 and Supreme Court decision should apply only to the Lungsod Silangan Townsite Reservation and to highly urbanized areas, but not to other areas in the country, especially to irrigated and irrigable prime agricultural lands. You further assert that the reclassification of these irrigated or irrigable prime agricultural lands into non-agricultural uses prior to June 15, 1988 partakes the nature of conversion. Therefore, DAR's approval of any request for exemption involving such lands would not only be unconstitutional but would also be contrary to the two (2) presidential issuances aforementioned as well as Section 22 of R.A. No. 9700. In view thereof, you now elevated the matter to us for our opinion.
We agree.
In your cited case of Natalia Realty vs. DAR, the Supreme Court explained the extent of the coverage of CARL, thus:
". . . Section 4 of R.A. 6657 provides that the CARL shall cover, regardless of tenurial arrangement and commodity produced, all public and private agricultural lands. As to what constitutes 'agricultural land,' it is referred to as 'land devoted to agricultural activity' as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land. The deliberations of the Constitutional Commission confirm limitation. 'Agricultural lands' are only those lands which are arable are suitable agricultural lands" and do not include commercial, industrial, and residential lands.
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"Indeed, lands not devoted to agricultural activity are outside the coverage of CARL. These include lands previously converted to non-agricultural uses prior to the effectivity of CARL by other government agencies other than respondent DAR." 1
Moreover, Section 65 of R.A. No. 6657, as amended, provides:
"Section 65. Conversion of Lands. — After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR upon application of the beneficiary or the landowner with respect only to his/her retained area which is tenanted, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land: Provided, That the beneficiary shall have fully paid his obligation."
Section 22 of R.A. No. 9700, amending the above-quoted legal provision, pertinently reads:
"Section 22. Section 65 of Republic Act No. 6657, as amended, is hereby further amended to read as follows:
'Section 65. Conversion of Lands. — After the lapse of five (5) years from its award, when the land ceases to be economically feasible and sound for agricultural purposes, or the locality has become urbanized and the land will have a greater economic value for residential, commercial or industrial purposes, the DAR, upon application of the beneficiary or the landowner with respect only to his/her retained area which is tenanted, with due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land: Provided, That if the applicant is a beneficiary under the agrarian laws and the land sought to be converted is the land awarded to his/her or any portion thereof, the applicant, after the conversion is granted, shall invest at least ten percent (10%) of the proceeds coming from the conversion in government securities: Provided, further, That the applicant upon conversion shall fully pay the price of the land: Provided, furthermore, That irrigated and irrigable lands shall not be subject to conversion: Provided, finally, That the National Irrigation Administration shall submit a consolidated data on the location nationwide of all irrigable lands within one (1) year from the effectivity of this Act." 2 DTEHIA
Evidently, and as stated by the Supreme Court in the aforecited case, reiterating an Opinion of this Department, lands previously reclassified or converted from agricultural lands to non-agricultural uses prior to the enactment of the CARL fall beyond the coverage thereof. For the same reason, and in view of Section 22 of R.A. No. 9700 amending Section 65 of the CARL, the only logical conclusion is that applications for exemption involving irrigated and irrigable lands, i.e., those classified as not subject to and non-negotiable for conversion, but subsequently reclassified into non-agricultural uses prior to June 15, 1988, can no longer be granted.
This conclusion finds support in the records of the congressional deliberations on House Bill No. 40777, which gave birth to R.A. No. 9700, in which not only was the limitation on what agricultural lands can be covered by the CARL acknowledged, but the policy prohibiting conversion of all irrigated and irrigable farmlands was also expressly made absolute and permanent. 3
To expand the wisdom of DOJ Opinion No. 181, Series of 1990 and the Court ruling in Natalia Realty vs. DAR to the effect that agricultural lands coverable under CARP do not include in its contemplation agricultural lands classified as commercial, industrial, or residential prior to 15 June 1988 for they ceased to be agricultural upon the approval of their classification/reclassification as could be inferred from the definition of Agricultural Land in Section 3 (c) of R.A. No. 6657, as amended, would be an over-generalization and negates the state policy against conversion of irrigated and irrigable lands. Thus, DOJ Opinion No. 181, Series of 1990 and the Supreme Court Ruling in Natalia Realty vs. DAR should not be made to generally apply to irrigated and irrigable prime agricultural lands.
The provisions of Section 65, as amended, are clear and categorical enough that interpretation has no room. 4 Thus, irrespective of whether the reclassification of irrigated and irrigable prime agricultural lands was done before or after the effectivity of the CARL, the terms of the present Section 65 leave no room for doubt that the legislative intent is to ban any conversion of such agricultural lands. Since exemption, for all intent and purposes, under these circumstances has essentially the same legal effect as conversion, that is, removing the lands from their potential agricultural use, the DAR may deny any application for exemption involving irrigated or irrigable lands.
Please be guided accordingly.
Very truly yours,
(SGD.) LEILA M. DE LIMA
Secretary
Footnotes
1. At pp. 282-283; Emphasis supplied.
2. Emphasis supplied.
3. May 27, 2008, p. 194; June 3, 2008, pp. 441-442.
4. Secretary of Justice Op. No. 23, s. 2010, citing cases and opinions.