September 9, 2002
DAR OPINION NO. 22-02
Mr. Danilo S. Sedilla
OIC, Vice-President
Technical and Maintenance Services
National Power Corporation
Cor. Quezon Avenue and Agham Road
Diliman, Quezon City
Gentlemen:
This refers to your letter dated 08 July 2002, requesting in behalf of the National Power Corporation (NPC) for a specific exemption for the San Roque Multi-Purpose Project, located in the boundaries of Pangasinan and Benguet, from the application of Department of Agrarian Reform (DAR) procedures on conversion of agricultural lands relative to lands acquired through expropriation by the NPC.
You state among others that the NPC is the lead agency in implementing the abovementioned project which is primarily aimed to utilize the water of Agno River in order to generate power at an installed capacity of 345 MW and to irrigate around 70,800 hectares of land covering 30 towns of Pangasinan and Tarlac; that this project will likewise improve flood control and the water quality of Agno River; that the project site comprises 2,060 hectares, more or less, of private land and around 2,800 hectares of public land; that approximately 1,500 hectares are located in the reservoir area where there are portions being claimed as ancestral lands by the indigenous peoples (IPs) of Benguet and Pangasinan; that the requested exemption will enable you to register the various deeds of conveyance which the landowners, LGUs, IPs, etc. have executed in favor of the NPC, and legitimize and protect the Government's rights over these properties. ITHADC
The mandate of the Department of Agrarian Reform (DAR) in the area of land use conversion is found in the following provisions of law:
1. Sections 4(j) and 5(l) of Executive Order No. 129-A (EO 129-A):
"Section 4. Mandate. — The Department shall be responsible for implementing the Comprehensive Agrarian Reform Program and for such purpose, it is authorized to:
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j) Approve or disapprove the conversion, restructuring or readjustment of agricultural lands into non-agricultural uses;
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Section 5. Powers and functions. — Pursuant to the mandate of the Department and in order to ensure the successful implementation of the Comprehensive Agrarian Reform Program, the Department is hereby authorized to:
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1) Have exclusive authority to approve or disapprove conversion of agricultural lands for residential, commercial, industrial, and other land uses as may be provided for by law."
2. Section 65 of RA 6657:
"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 due notice to the affected parties, and subject to existing laws, may authorize the reclassification or conversion of the land and its disposition: Provided, That the beneficiary shall have fully paid his obligation."
Pursuant to the above provisions, various guidelines on land use conversion have been issued by the DAR, the latest of which is Administrative Order No. 1, Series of 2002 (AO No. 1). Section 6.1 of AO No. 1 provides the following:
"In accordance with RA 7916, EO-124-1993, and EO-258-2000, the following are priority development areas for land conversion:
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6.1.4. Agricultural land, owned by the government, to be converted for projects of national interest, as certified by the proper government agency."
Under this rule, if government-owned land is to be devoted to a project of national interest, then DAR conversion clearance is necessary. The certification of the proper government agency is a requirement for conversion, but it is not by itself conclusive. In effect, the sole opinion of such proper government agency is not sufficient to justify the conversion of the land, and its consequent removal from the coverage of RA 6657. Rather, the DAR must also give its approval for the conversion to proceed. CHcESa
We believe that this section applies, regardless of whether the land was originally owned by government or acquired by expropriation for the purpose of conversion. In either case, the government acquires or has acquired title to agricultural land which is now to be devoted to some non-agricultural purpose. To hold that it does not apply to expropriated land will lead to an illogical distinction, that when a government agency acquires agricultural private land for public use, then it alone decides the propriety of conversion, but when agricultural land owned by the government is to be used, then it must seek the approval of the DAR. In both cases, land is to be devoted to public purpose (the phrase "national interest" is in this context equivalent to public interest), yet that purpose will automatically override agrarian reform law in one case, but be subject to it in another, depending solely on the origin of the land. While the distinction may be substantial for some purposes, it is relevant in determining the necessity of involvement by the DAR.
We do not believe that the case of Province of Camarines Sur vs. Court of Appeals, G.R. No. 103125, May 17, 1993 is applicable to your case, previous opinions notwithstanding. That case involved expropriation by a local government unit; the Supreme Court held that the local government's power of eminent domain could not be restricted by agrarian reform law. This interpretation is consistent with the general principle of local autonomy, which should not be reduced by mere implication. It would also be consistent with the Presidential power over LGUs, which is limited to supervision, but not control (Drilon vs. Lim, G.R. No. 112497, August 4, 1994).
Such considerations would not apply in the case of expropriation by agencies attached to the national government, including government corporations, over which the President exercises the power of control (Namarco vs. Arca, G.R. No. L-25743, September 30, 1969). In such situations, there is no diminution of the agencies delegated power of eminent domain, since the exercise of such power is inherently subject to the control of the President.
Each head of a department is the President's alter ego in the matters of that department where the President is required by law to exercise authority (Philippine American Management Company, Inc. vs. Philippine American Management Employees Association, G.R. No. L-35254, May 25, 1973). In this case, the law to be enforced is RA 6657. AO No. 1 lays down a procedure by which the law's mandates and policies are to be protected. As a part of the executive branch, the NPC should act in accordance with this procedure, and obtain the approval of the DAR in furtherance of RA 6657 and EO 129-A.
This position is supported by the use of the term "national interest" in AO NO. 1, as opposed to the local (though still public) interests involved in acts of LGUs. The DAR clearance would be necessary whether the land is originally owned by government, or acquired through expropriation, so long as the agency involved is an agent of the national government.
Thank you for communicating with us. We hope we have clarified our position on this matter.
Very truly yours,
(SGD.) VIRGILIO R. DE LOS REYES
Undersecretary for Policy, Planning and
Legal Affairs Office