May 8, 1997
DAR OPINION NO. 54-97
Engr. Felix B. Aguhob
OIC-PARO, Department of Agrarian Reform
Vamenta. Boulevard
Carmen, Cagayan de Oro City
S i r :
Here are the answers to the issues on illegal conversion you raised, to wit:
1. Whether the phrase "and to dispossess his tenant farmers of the land tilled by them", found in Section 73 (c) of R.A. 6657 means that dispossession of the tenant is an indispensable element in the crime of illegal conversion. Stated otherwise, is there no illegal conversion if the land has never been tenanted?;
2. Whether the reclassification by the Local Sanggunian pursuant to its authority under the Local Government Code and M.C. No. 54 exempts from criminal prosecution the subsequent conversion of the property without DAR approval. As frequently contended, the legal reclassification into non-agricultural use removes the property from the definition of agricultural land under Section 3 (c), while prosecution under said section applies only to conversion of agricultural land. Hence, it is alleged that there is no offense as the conversion no longer involves agricultural land as defined by law;
3. Whether or not a case for illegal conversion against a corporation or association may be dismissed due to the failure in the complaint to identify the names of its responsible officers, unavailability of such information or for non-disclosure of the said entities;
4. Whether or not a person is still liable for illegal conversion in cases where the property converted is: a) his retention area, b) an insignificant portion, c) just suitable for a homelot, d) changed to fishponds, livestocks or commercial trees or, e) when the dominant use of the land remains agricultural after the conversion. In fine, what is the size or area criteria in considering conversions sans DAR approval as illegal?;
5. Whether or not Section 73 paragraph (e), prohibiting land transaction outside urban centers and city limits is absolute so as to preclude all sorts of land conveyances or the DAR from issuing clearances under A.O. No. 1, Series of 1989;
6. Whether or not rice/corn mill, warehouse and solar drier property would constitute an illegal conversion case considering the fact that said rice/corn mill would be beneficial to the farmers within the vicinity of the area?
On the first issue, under paragraph (c) of Section 73 of R.A. No. 6657 there are two elements of the crime of illegal conversion; first is the conversion by any landowner of his agricultural land into non agricultural use with intent to avoid the application of R.A. No. 6657, and second to dispossess his tenant farmers of the land tilled by them. Absence of either of the elements mentioned would result in the dismissal of the illegal conversion case. In other words, there is no illegal conversion if the land is untenanted. However, although the two elements must concur under Section 73 paragraph (c), the absence of either may still cause the prosecution of the crime of illegal conversion for the willful prevention or obstruction by any person, association or entity of the implementation of the CARP under Section 73, paragraph (d) of the same law.
On the second issue, under DOJ Opinion No. 44, Series of 1990, a parcel of land is considered non-agricultural and therefore, beyond the coverage of CARP if it has been classified as residential, commercial or industrial in the city or municipality land use plan or zoning ordinance approved by the HLURB before 15 June 1988, the date of effectivity of CARL. However, the landowners falling under this category no longer need any conversion clearance but application for an Exemption Clearance should be filed with the Regional Office of the DAR where the land is located. The procedures and requirements are detailed in A.O. No. 6, Series of 1994.
With respect however to conversion of lands from agricultural to non-agricultural use after June 15, 1988, under A.O. No. 12, Series of 1994, such may be allowed if at the time of the application, the lands are reclassified as commercial, industrial and residential in the new or revised town plans promulgated by the local government unit and approved by the HLURB or by the Sangguniang Panlalawigan (SP) after June 15, 1988 in accordance with Section 20 of R.A. No. 7160, as implemented by M.C. No. 54 and E.O. No. 72, Series of 1993 of the Office of the President. It is in this instance that illegal conversion may arise considering that our administrative issuance provides for a penal provision which states that "pursuant to Section 73 and 74 of R.A. No. 6657, any person who knowingly or willfully converts any agricultural land without the approval of the DAR, shall be subject to criminal prosecution as provided for under the Joint DAR-DOJ A.O. No. 4, Series of 1993.
On the third issue, the absence in the complaint of the identity of the names of the responsible officers or the unavailability of such information or for non-disclosure of the corporation or association will not cause the dismissal of the same. Under Section 74 of R.A. No. 6657, it provides that if the offender is a corporation or association the officer responsible therefor shall be criminally liable. Note, however, that the violation of the said law particularly Section 73 of R.A. No. 6657 thereof is subject to criminal prosecution and necessarily falls under the Rules on Criminal Procedure (the Rules of Court). Under Section 7 of Rule 110 of the Rules of Court it is provided that "a complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known, or if his name cannot be discovered he must be described under a fictitious name with a statement that if his true name is unknown but in the course of the proceeding the true name of the accused is disclosed by him, or appears in some other manner to the court, the true name of the accused shall be inserted in the complaint or information and record". Moreover, under Section 3 of Rule 110 of the Rules of Court it does not state that the absence of the name of the accused in the complaint or information is a ground to quash the complaint or information.
With regard to the retention area, an insignificant portion, and just suitable homelot, their conversion to non-agricultural use will constitute illegal conversion if such change in the land use is without order of conversion from DAR.
Anent the change to fishponds of public agricultural land, Joint DAR-DA-DENR-DILG Administrative Order No. 1, Series of 1996, otherwise known as the "Rules and Regulations Governing the Conversion of Public Agricultural Lands to Fishponds and Prawn Farms Pursuant to R.A. No. 6657, as Amended by R.A. No. 7881" provides in its policy statement that no conversion of public agricultural land into fishponds or prawn farms shall be allowed except when the concerned agencies of the government declare a coastal zone as suitable for fishpond development. On the other hand, if the conversion/change is from private land to fishpond, Section 4 of R.A. No. 7881 provides that "no conversion of more than five (5) hectares of private lands to fishponds and prawn farms after the passage of this Act, except when the use of the land is more economically feasible and sound for fishpond as certified by the BFAR, and a simple and absolute majority of the regular farm workers or tenants agree to the conversion, the DAR, may approve applications for change in the use of the land. Any change to fishpond of public agricultural land and private land without undergoing the process prescribed under the law is considered illegal.
With regard to change to livestock, A.O. No. 9, Series of 1993, provides that any act of a landowner to change or convert his agricultural land to livestock after 15 June 1988, with the intent to avoid the application of R.A. No. 6657 to his landholdings, shall be considered invalid and illegal and shall not affect the coverage of his landholding under CARP.
When the dominant use of the land remains agricultural after the conversion, the Order of Conversion may be cancelled for failure to implement and complete the land development of the area within one year from the issuance of the Order of Conversion where the area is five (5) hectares or less. Should the area exceed five hectares, an additional year shall be allowed for every five hectares or a fraction thereof but in no case shall the completion of development extend beyond five years from the issuance of the Order of Conversion. Thus a twelve (12) hectare area may be developed within three years, but a 50 hectare landholding should be developed within five (5) years. A.O. No. 12, Series of 1994, provides that lands covered by a petition for conversion which had been disapproved or those covered by a Conversion Order which had been cancelled or withdrawn shall be placed under CARP compulsory coverage in accordance with the schedule of implementation prescribed in Section 7 of R.A. No. 6657 and distributed to all qualified beneficiaries.
On the fifth issue, Section 73 (e) provides that any sale, transfer, conveyance or change of the nature of lands outside of urban centers or city limits after the effectivity of the law, is a prohibited act. In a statement made by Sec. Garilao appearing in the DAR Infoline dated October 23, 1996, it says: "that provision does not apply to agricultural land situated inside the urban centers or city limits". He added that there are cases in which the municipality itself has reclassified the land into non-agricultural use.
With regard to the sale or transfer of land outside of urban centers and city limits, it is allowed if what is to be sold by the landowner is his retained area, thus the clearance is issued under A.O. No. 1, Series of 1989 for purposes of registration of the sale with the Register of Deeds.
Anent your query on whether or not the building of rice/corn mill, warehouse and solar drier would constitute an illegal conversion case considering the fact that said rice/corn mill, warehouse and solar drier would be beneficial to the farmers, the answer is in the affirmative. Building said rice/corn mill, warehouse and solar drier is an act of conversion because it would change the use of the land from agricultural to non-agricultural, albeit the same would be beneficial to the farmers. Prior DAR approval must be sought when a portion of agricultural land is intended to be used as a rice/corn mill, warehouse and solar drier to ensure that the same will not result in a circumvention of CARL and as a safeguard against indiscriminate land use conversion.
We hope to have clarified the issues with you.
Very truly yours,
(SGD.) ARTEMIO A. ADASA, JR.
Undersecretary for Legal Affairs, and Policy and Planning