DOJ OPINION NO. 082, s. 1995
August 24, 1995
Undersecretary Pablo S. Trillana II
Department of Environment and Natural Resources
Visayas Avenue, Diliman
S i r :
This has reference to your request for "opinion and comment" on the conflicting views of your office and that of the Regional Director, Regional Office No. 6, Department of Agrarian Reform (DAR) concerning the compensability of the strips of land along riverbanks, under the Voluntary Offer to Sell Schemes of the Comprehensive Agrarian Reform Program (R.A. No. 6657), which are subject of legal easements under Art. 638 of the new Civil Code and Sec. 90 of the Public Land Act.
You state that upon request for opinion on the matter by the Land Bank of the Philippines, you expressed the view that "these strips of land . . . should not be considered in determining the consideration of the sale since no economic benefit could have inured to the owners in view of its character as a legal burden; . . . to allow them (is) to unjustly enrich themselves at the expense of the government since they stand to suffer no compensable loss for which payment should properly be made".
On the other hand, the Regional Director, DAR Regional 6, has espoused a contrary view that Art. 638 of the new Civil Code permits compensation in case of occupancy of the portion of land subject of legal easement; and that the legal easement under the Public Land Act is applicable only to public lands acquired through free patent, homestead patent or any of the modes of acquisition provided in the Public Land Act, but not to lands that are already of private ownership.
We regret that we have to decline rendition of the desired opinion or comment.
It is noted that the resolution of your query would unavoidably pass upon the powers and functions of the DAR which is vested with "primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of agrarian reform" (Section 50 of R.A. No. 6657). Pursuant to established policy, this Department refrains from expressing its views on matters which fall within the primary jurisdiction of another office or agency, in this case, the DAR, and over the rulings and actuations of which this Department possesses no revisory authority (Sec. of Justice Opn. Nos. 80 and 140, s. 1988; and No. 91, s. 1993).
Besides, the subject matter involves the substantive rights of private parties like the landowners affected by the CARP. Since the opinion of the Secretary of Justice is merely advisory in nature, such opinion would not be binding upon said private parties, who, if adversely affected by such opinion, may take issue therewith and contest it before the courts. As a matter of policy, the Secretary of Justice has consistently refrained from rendering opinion on question which are justiciable in nature or is subject to judicial controversy (Id., Opn. No. 148, s. 1993; and No. 3, s. 1994).
It is suggested that the matter be threshed out with the Secretary of the Department of Agrarian Reform.
Very truly yours,
TEOFISTO T. GUINGONA, JR.