THIRD DIVISION
[ G.R. No. 211731. December 07, 2016 ]
NATIONAL POWER CORPORATION, PETITIONER, V. SPOUSES CONCHITA MALAPASCUA-MALIJAN AND LAZARO MALIJAN, RESPONDENTS.
[G.R. No. 211818, December 7, 2016]
CONCHITA MALAPASCUA-MALIJAN AND HEIRS OF LAZARO MALIJAN, PETITIONERS, V. NATIONAL POWER CORPORATION, RESPONDENT.
DISSENTING OPINION
VELASCO, JR., J.:
Regrettably, I am unable to concur with the conclusions of the ponencia.
I maintain my postulation in Secretary of Public Works and Highways v. Spouses Tecson1 (Tecson Case) that a legitimate exercise of eminent domain presupposes that the filing of the complaint for expropriation preceded the actual taking. This is pursuant to the twin constitutional mandates that "[n]o person shall be deprived of x x x property without due process of law"2 and that "[p]rivate property shall not be taken for public use without just compensation."3 As I have discussed in my Dissenting Opinion in the Tecson Case:
x x x The Constitution requires that the act of deprivation should be preceded by compliance with procedural due process, part and parcel of which includes the filing of an expropriation case. This is so because by filing the action for expropriation, the government, in effect, serves notice that it is taking title and possession of the property. Hence, without an expropriation suit, private property is being taken without due notice to the landowner, in violation of his constitutional right.ℒαwρhi৷
x x x x
It behoves the state to commence the necessary proceedings since the adverted constitutional provisions, as couched, place on the government the correlative burden of proving compliance with the imperatives of due process and just compensation prescribed under Secs. 1 and 9, Art. III of the Constitution.1aшphi1 x x x
x x x x
The need for the government to commence condemnation proceedings as required has far-reaching ramifications that are legal as they are practical. Aside from operating as due notice to the landowner, initiating the case likewise entitles the government to acquire possession of the property, subject to the posting of a deposit. Thus, absent an expropriation case, the requirement of posting a deposit will not come into play and, consequently, the right of the government to acquire possession over the subject land will never arise.
The due process requirement, in the context of expropriation, dictates that there be sufficient notice to the landowner before the government can assume possession of his or her land. The filing of the complaint satisfies this notice requirement. Thus, until the condemnation proceeding is initiated, the government does not yet have any valid authority to intrude on the property, regardless of whether or not its intended purpose is for the public good. The failure to initiate the complaint for expropriation before the government assumes possession over the subject lot does not amount to a valid exercise of eminent domain.
In this case, it must be emphasized that though the National Power Corporation (NPC) filed a complaint for expropriation on October 25, 2005, the actual taking of the property commenced much earlier in 1972. By simple arithmetic, thirty-three (33) years have already elapsed from the time the landowners were deprived of possession of their property until the government took responsibility for its actions. This, to my mind, miserably fails to satisfy the due process requirement and is instead a circumvention of the Constitutional mandates, constitutive of unlawful taking.
I cannot therefore, in good conscience, agree with the conclusion that the landowners' entitlement to just compensation in this case should be reckoned from the date of taking in 1972, for the simple reason that the taking at that time was still unlawful. When possession over the property was wrestled from the Spouses Malijan, the government then had no color of authority to do the same. The government's right of eminent domain is not a panacea that licenses it to proceed as it pleases in taking property, for constitutional safeguards rein in the exercise of this otherwise boundless inherent power of the state.
As an alternative, I respectfully propose that the valuation of the property should be reckoned from the date of filing of the complaint for expropriation on October 25, 2005. It was only then when the government could have validly sought the consent of the landowners to enforce a lawful taking for a public purpose; it was only then when the intention of the state to expropriate became manifest.
The proposition is in line with our ruling in National Power Corporation v. Court of Appeals4 (NPC v. CA) wherein the Court enumerated the circumstances that must be present in the taking of property for purposes of eminent domain:
(1) the expropriator must enter a private property;
(2) the entrance into private property must be for more than a momentary period;
(3) the entry into the property should be under warrant or color of legal authority;
(4) the property must be devoted to a public use or otherwise informally appropriated or injuriously affected; and
(5) the utilization of the property for public use must be in such a way as to oust the owner and deprive him of all beneficial enjoyment of the property.
Hence, in NPC v. CA, the determination of just compensation was based on the price of the property in 1992, when the government sued for expropriation, rather than in 1978, the date of actual taking. As we have cautioned therein:
If We decree that the fair market value of the land be determined as of 1978, then We would be sanctioning a deceptive scheme whereby NAPOCOR, for any reason other than for eminent domain would occupy another's property and when later pressed for payment, first negotiate for a low price and then conveniently expropriate the property when the landowner refuses to accept its offer claiming that the taking of the property for the purpose of eminent domain should be reckoned as of the date when it started to occupy the property and that the value of the property should be computed as of the date of the taking despite the increase in the meantime in the value of the property. (emphasis added)
It is this holding in NPC v. CA that should be upheld in the case at bar. To rule otherwise would not only be grossly unfair to the landowner, but would also be tantamount to countenancing the fatal omission of the NPC when it filed its complaint for expropriation. Aptly pointed out by the Spouses Malijan was that nowhere in the complaint was it ever mentioned that the government has already been occupying the land as early as 1972. Such ultimate fact should have been alleged by the state in its initiatory pleading for it to be allowed to establish the claim that the valuation for just compensation should be reckoned from that year. Hoisting this argument belatedly, after the court-appointed commissioners have already come up with a report, ought to then preclude the court from determining just compensation based on the date of actual taking. The date of filing should then be controlling in this case.
Lack of opposition on the part of the Spouses Malijan cannot so casually be construed as acquiescence with the government's deed, for their inaction may merely be due to lack of options. We must take heed of the foreshadowing so eloquently pronounced in Alfonso v. City of Pasay:5
This Tribunal does not look with favor on the practice of the Government or any of its branches, of taking away property from a private landowner, especially a registered one, without going through the legal process of expropriation or a negotiated sale and paying for said property without delay. The private owner is usually at a great and distinct disadvantage. He has against him the whole Government, central or local, that has occupied and appropriated his property, summarily and arbitrarily, sometimes, if not more often, against his consent. There is no agreement as to its price or its rent. In the meantime, the landowner makes requests for payment, rent, or even some understanding, patiently waiting and hoping that the Government would soon get around to hearing and granting his claim. The officials concerned may promise to consider his claim and come to an agreement as to the amount and time for compensation, but with the not infrequent government delay and red tape, and with the change in administration, specially local, the claim is pigeon holed and forgotten and the papers lost, mislaid, or even destroyed as happened during the last war. And when finally losing patience and hope, he brings a court action and hires a lawyer to represent him in the vindication of his valid claim, he faces the government represented by no less than the Solicitor General or the Provincial Fiscal or City Attorney, who blandly and with self-assurance, invokes prescription. The litigation sometimes drags on for years. In our opinion, that is neither just nor fair. When a citizen, because of this practice loses faith in the government and its readiness and willingness to pay for what it gets and appropriates, in the future said citizen would not allow the Government to even enter his property unless condemnation proceedings are first initiated, and the value of the property, as provisionally ascertained by the Court, is deposited, subject to his disposal. This would mean delay and difficulty for the Government, but all of its own making. (emphasis added)
It is in view of the foregoing circumstances that I withhold my concurrence from the decision of the majority.
Footnotes
1 G.R. No. 179334, April 21, 2015.
2 Sec. 1, Article III of the 1987 Philippine Constitution.
3 Sec. 9, id.
4 G.R. No. 113194, March 11, 1996, 254 SCRA 577.
5 Alfonso v. Pasay, No. L-12754, January 30, 1960.
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