[O.P. Case No. 99-G-8791.  December 19, 2000.]

IN RE: PETITION FOR CARP COVERAGE,

ANGELINA PANCHO, petitioner-appellant, vs. BNCP BUILDERS, represented by NILDA BAYANI, intervenor-appellee.

D E C I S I O N

          Before this Office is an appeal from an Order dated May 25, 1998 of then Secretary Ernesto D. Garilao of the Department of Agrarian Reform (DAR), affirming his earlier Order dated November 24, 1997, the decretal portion of which reads:

          "WHEREFORE, premises considered, the Order dated August 5, 1996 issued by the Regional Director of DAR, Region V, Legaspi City, is hereby modified as follows:

1.         AFFIRMING the exemption coverage of the 4.0000 hectares, which are classified as within the Residential Zone;

2.         DECLARING the remaining 8,7350 hectares exempt from CARP coverage. Thus, the subject landholdings with a total area of 12.7350 hectares are exempt from CARP coverage; and,

3.         DIRECTING the payment of disturbance compensation to farmers/tenants who will be prejudiced/affected by virtue of this Order pursuant to existing laws, rules and regulations.

          SO ORDERED."

          Subject of this case is a parcel of land with an area of 12.7350 hectares situated at Poblacion Dos, Basud, Camarines Norte, formerly owned by Maria Paz Pimentel. A portion thereof (39,439 sq.m. and 9,980 sq.m.) with a total area of 4 hectares, more or less, was being tenanted by petitioner-appellant Angelina Pancho and by Carmen Samonte vda de Hernandez, respectively.

          On October 20, 1990, the landowner, thru her Attorney-in-Fact, Marcial R. Pimentel, entered into a Contract to Sell involving the subject land with Camarines Norte Housing and Livelihood Coop. Inc., [CANHOLI] (PP. 23-26, Records) which paid P100,000.00 as earnest money to bind the former. Thereafter, on December 27, 1990, CANHOLI applied for conversion of the entire subject land from agricultural to non-agricultural use.

          Acting thereon, then DAR Undersecretary Renato B. Padilla, in a letter dated August 29, 1991, ruled and informed CANHOLI that pursuant to Department of Justice (DOJ) Opinion No. 44, S. of 1990, and DAR Administrative Order (AO) No. 1, S. of 1990 (p. 15, Records), the subject landholding no longer needs DAR Conversion Clearance considering that it has been classified as residential prior to June 15, 1988, the effectivity of Comprehensive Agrarian Reform Law (CARL) of 1988. His conclusion was based on the Certification dated October 26, 1990 of Engr. Eduardo A. de Vega, Municipal Planning and Development Coordinator, Basud, Camarines Norte, to the effect that the subject land is within the residential zone as reflected in the Comprehensive Development Plan of Basud (p. 19, Records) and Resolution No. R-214, S. of 1984 of the then Human Settlements Regulatory Commission (HSRC, now HLURB) approving the Town Plan of Basud on November 15, 1984 (p. 22, Records). The ruling was not appealed.

          On March 17, 1995, petitioner-appellant petitioned the DAR to place the entire 12.7350 hectare, including the 4.000 hectare portion she was tilling, under the operation of CARP, alleging that it is an agricultural land and that she was been occupying and cultivating a portion thereof since 1941 (p. 11, Records).

          In her letter to Engr. Silverio G. Quinones, Chairman, Municipal Technical Working Group — LUPP, Municipal Agrarian Reform (MARO) Lina Palado of Basud, Camarines Norte, acknowledged the fact that subject land has been classified as residential in the Town Plan of Basud as approved by HLURB on November 15, 1984 and that pursuant thereto, DAR Undersecretary Padilla informed the landowner that the subject land no longer needs DAR conversion clearance. Despite such findings, petitioner-appellant insisted on her claim that the subject land is agricultural and therefore should be placed under CARP coverage.

          Meanwhile, on February 28, 1996, the landowner, thru her Attorney-in-Fact, sold the subject land in favor of the now herein intervenor-appellee, BNCP Builders (pp. 78-80, Records).

          In an Order dated August 5, 1996, the dispositive portion of which is reproduced hereunder, then DAR Regional Director of Region V, Percival C. Dalugdug, on the basis of investigation report (p. 36, Records) dated January 22, 1996 of Manuel J. Belsa, Legal Officer II, DARPO, Matunog, Basud, Camarines Norte, that only a portion (4. hectares) of the 12.7350 hectare landholding is identified as residential, resolved to place the subject landholding under CARP coverage, except the 4 hectares found within the residential zone. His order states:

          "WHEREFORE, premises considered, order is hereby rendered:

1.         Directing the Municipal Agrarian Reform Officer of Basud, Camarines Norte and the Provincial Agrarian Reform Officer of Camarines Norte in coordination with the Local Government Unit of Basud to determine the boundaries of the residential zone (about 4.0000 hectares) as of June 15, 1988 within the 12.7350 hectares tenanted by Angelina Roldan vda. de Pancho and Carmen Samonte vda. de Hernandez;

2.         Directing the Provincial Agrarian Reform Officer of Camarines Norte and Field officers concerned to acquire and distribute all the agricultural lands of Maria Paz Pimentel as of June 15, 1988 without delay, pursuant to law.

SO ORDERED."

          Not satisfied, BNCP Builders interposed an appeal (motion for intervention) before the DAR Secretary's Office (p. 70, Records).

          To resolve the appeal, and based on the dissenting opinion (p. 130, Records) as reflected in the 1st Indorsement dated February 7, 1996 of Atty. Nicolas A. Ocampo, OIC-Chief, Legal Division, Provincial Agrarian Office, Basud, Camarines Norte, the DAR Secretary ordered an investigation and ocular inspection of the subject property.

          In compliance therewith, on May 6, 1997, Benjamin T. Baui Jr. and Nicolas Pablo, both legal officers III of DAR, in their investigation report (pp. 136-137, Records) addressed to Director Ruben Joel A. Puertullano, BALA, confirmed that indeed subject lands identified in their previous certification dated October 26, 1990, are considered non-agricultural as early as 1984.

          Pursuant thereto, in an Order dated November 24, 1997 (pp. 148-157, Records) quoted at the outset, then DAR Secretary Garilao modified the Order of Director Dalugdug by exempting the entire subject land from CARP coverage. The exemption order was predicated on a finding that the subject land had been classified as residential even prior to the effectivity of CARL pursuant to the Comprehensive Development Plan of the Municipality of Basud duly approved by the HLURB under Resolution No. R-214, S. of 1984.

          Undaunted, petitioner-appellant filed a motion for reconsideration, which was subsequently denied in an order dated May 25, 1998 (p. 205, Records). Thereafter she filed a notice of appeal with the DAR without however furnishing this Office a copy of the said notice. Neither did she file her appeal memorandum as required by this Office in its Order dated July 20, 1999. This notwithstanding, this Office resolves to rule the controversy on merits.

          The issue to be resolved in this appeal is whether or not only a portion (4.0000 hectares) of the 12.7350-hectare landholding had been, as appellants claim, classified as residential zone.

          After a careful review of the records and the evidence presented in this case, it is our finding that the assailed orders issued by the DAR Secretary are well supported by the facts and evidences on record. Consequently, we find no reason to disturb the said finding.

          It is undisputed that prior to the effectivity of CARL in June 15, 1988, pursuant to the Urban Land Use Plan of the Municipality of Basud, Camarines Norte, the subject landholding has already been classified as residential zone and part of the Municipality as early as 1984. This undisputed finding is based on the Certification dated October 26, 1990 of Engr. Eduardo de Vera, Municipal Planning and Development Coordinator of Basud, which states that Lot No. 944 CAD532 consisting of 12.7350 hectares is within the residential zone, as per Comprehensive Development Plan of the Municipality of Basud and Resolution No. R-214, series of 1984, of the Housing and Land Use Regulatory Board approving the Town Plan of Basud. Consistent with the Supreme Court ruling in Natalia vs. DAR Secretary (225 SCRA, 278), the property should, therefore, be considered as residential and not agricultural, and therefore beyond the coverage of CARL in accordance with Section 3 (c) of R.A. 6657 which defines agricultural lands as ". . . lands not classified as mineral, forest, residential, commercial or industrial land".

          As a matter of fact, Undersecretary Jose C. Medina, Jr., in his Memorandum dated 27 September 1995, concurred with the exemption from CARP coverage of the said land because it was already reclassified as non-agricultural prior to June 15, 1988.

          The above Certification of Engr. Eduardo de Vera is further confirmed by the Certification dated April 30, 1997 of Silvero G. Quinones III of the Office of MPDC of Basud, Camarines Norte, who stated that the said properties are no longer classified as agricultural lands.

          The allegation of appellant that only 4.000 hectares of the 12-hectare property was converted into non-agricultural use in 1984, and that the remaining portion thereof remains unclassified and therefore agricultural, stemmed from misinterpretation and erroneous conclusion (pp. 131-132, Records) in that in the sketch or plan that was obtained from the Municipal Planning Coordinator, only 4.000 hectares was colored in the legend as residential. This gave rise to the erroneous conclusion that only 4.000-hectare of the 12 hectare property had been converted into residential zone while the remaining 7 hectare plus remained unclassified and therefore still agricultural. This stand is of course contested by the Municipal Planning Coordinator who insisted that the entire 12-hectare property was already converted as part of the Municipality although only 4.000 hectares thereof is classified within a residential zone. Their clarification of the controversy is that while it is true that only 4 hectares of the subject property are strictly classified as residential zone, the remaining portion of the property (7 plus hectare) is classified as parks and open spaces (p. 99, Records) which has been reserved for future expansion. In accordance with the Land Use Plan of the municipality therefore, the entire 12-hectare property was declared non-agricultural in 1984.

          It must be stressed that the issue of whether or not the entire subject property is classified as residential had already been litigated and resolved when CANHOLI applied for conversion clearance of the subject property sometime in December 27, 1990. In the resolution of that petition, then DAR Undersecretary Renato B. Padilla categorically ruled that the subject property does not any more need any DAR conversion clearance for the simple reason that said property falls within the residential zone as reflected in the Comprehensive Development Plan of the Municipality of Basud, Camarines Norte, which plan was duly approved by the Human Settlements Regulatory Commission (now HLURB) on November 15, 1984 under Resolution No. 12-214, S. of 1984 prior to the effectivity of CARL in June 15, 1988. For want of an appeal to the said ruling, said decision had become final and executory.

          Considering that, in this case, the agency competent to conduct a survey and determine the boundaries of subject properties and their land use is the Municipal Planning and Development Coordinator of the Local Government Unit of Basud. Camarines Norte, its stand on the issue is regarded as more credible and authoritative than those of the DAR which merely relied on the records and findings of the MPDC. This is bolstered by the fact that when the subject property was converted and included in the Urban Land Use Plan of the Municipality of Basud, the entire Lot No 944 CAD 532 was included and not restricted to only 4.000 hectares, and that parks and open spaces are considered amenities and are deemed included in the term residential zone.

          WHEREFORE, orders of the Secretary of Agrarian Reform dated 24 November 1997 and 25 May 1998, respectively, are hereby AFFIRMED. The instant appeal is accordingly DISMISSED.

          SO ORDERED.

          Manila, Philippines.

By authority of the President:

(SGD.) RONALDO B. ZAMORA

Executive Secretary

Copy furnished:

Ms. Nilda Bayan

Ms. Angelina Pancho

Department of Agrarian Reform