DISSENTING OPINION
PERALTA, J.:
With due respect to my colleagues, I vote to grant the Omnibus Motion dated November 21, 2016, filed by the petitioner, set aside the Court's Resolution dated October 19, 2016, and reinstate our Decision dated February 1, 2012, or at the very least, refer the resolution of petitioner's Motion for Reconsideration to the Court En Banc.
As I have earlier opined, the Order dated June 8, 2001 of then DAR Secretary Hernani A. Braganza, declaring that the subject properties are agricultural land, has not become final and executory because the petitioner was not properly served a copy of the said Order. To recall, petitioner's counsel received a copy of the Order dated June 8, 2001 and the Order of Finality dated August 6, 2001 only when he received the letter of Director Delfin B. Samson on September 10, 2001. The sequence of events which led to petitioner actually receiving a copy of the said Orders was outlined in the Court's earlier Decision, to wit:
On June 8, 2001, then DAR Secretary Hemani A. Braganza issued an Order in favor of the respondent declaring that the subject properties are agricultural land; thus, falling within the coverage of the CARP, the decretal portion of which reads:
x x x x
On July 24, 2001, respondents filed a Motion for the Issuance of an Order of Finality of Judgment praying that an Order of Finality be issued for petitioner's failure to interpose a motion for reconsideration or an appeal from the order of the DAR Secretary.
On August 3, 2001, the DAR issued an Order granting the motion and directing that an Order of Finality be issued. Consequently, on August 6, 2001, an Order of Finality quoting the dispositive portion of the June 8, 2001 Order of the DAR Secretary was issued.
On August 17, 2001, petitioner received a copy of the Orders dated August 3 and 6, 2001. Thereafter, on August 20, 2001, petitioner filed a Motion to Lift Order of Finality.
On August 28, 2001, petitioner's counsel filed a Manifestation with Urgent Ex-Parte Motion for Early Resolution informing the DAR of his new office address and praying that the petition be resolved at the earliest convenient time and that he be furnished copies of dispositions and notices at his new and present address.
In a Letter sent to the new address of petitioner's counsel, dated September 4, 2001, Director Delfin B. Samson of the DAR informed petitioner's counsel that the case has been decided and an order of finality has already been issued, copies of which were forwarded to his last known address. Nevertheless, Director Samson attached copies of the Order dated June 8, 2001 and the Order of Finality dated August 6, 2001 for his reference.
On September 14, 2001, petitioner filed a Motion for Reconsideration with Manifestation, questioning the Orders dated June 8, 2001 and August 6, 2001 and praying that the said Orders be set aside and a new one issued granting the petition.
On September 21, 2001, the DAR issued an Order directing the parties to submit their respective memoranda.
On November 5, 2001, the DAR issued an Order denying the motion for reconsideration, which was received by petitioner's counsel on November 15, 2001.
Aggrieved, petitioner filed an appeal before the Office of the President which was received by the latter on November 21, 2001.1 The case was docketed as O.P. Case No. 01-K-184.2
Consequently, based on the foregoing and the chronological order of events that transpired leading to the filing of petitioner's motion for reconsideration on September 14, 2001, it was apparent that petitioner was not properly served a copy of the disputed Order and that the DAR rectified such failure by subsequently serving a copy of the Order upon petitioner's counsel at his new address.
This belated notification was made through the Letter3 of Director Delfin B. Samson, dated September 4, 2001, informing petitioner's counsel that the case has already been decided and an order of finality was already issued. Worthy of note is the statement, "[a]ttached, for reference, are copies thereof being transmitted at your new given address," which, taken together with the statements made by the DAR Secretary in the Order denying petitioner's motion for reconsideration dated November 5, 2001,4 was proof that petitioner was only furnished a copy of the June 8, 2001 Order when it received the letter of Director Samson.
Hence, contrary to the conclusion of the CA, the June 8, 2001 Order of the DAR Secretary has not attained finality.1âwphi1 Petitioner's consequent appeal to the Office of the President, upon denial of its motion for reconsideration, was filed on time and it was proper for the Office of the President to have entertained the appeal.
Accordingly, the determination of whether or not petitioner's landholdings are agricultural land is left to be determined upon proper compliance with the procedure set forth by law. As properly concluded by the Office of the President in its August 8, 2003 Decision, before the DAR could place a piece of land under CARP coverage, there must first be a showing that it is an agricultural land, i.e., devoted or suitable for agricultural purpos.es. An important part in determining its classification is the procedure outlined in DAR Administrative Order No. 01, Series of 2003, or the 2003 Rules Governing Issuance of Notice of Coverage and Acquisition of Agricultural Lands Under RA 6657.5 In the case at bar, it must be underscored that proper preliminary ocular inspection was not conducted as required by the Administrative Order. Being an essential part in the process of subjecting privately-owned land for distribution under the government's agrarian reform program, compliance therewith ensures that administrative due process was accorded to a landowner prior to its taking by the government for distribution to qualified beneficiaries. As correctly discussed by the .Office of the President in its Decision, viz.:
In other words, before the MARO sends a Notice of Coverage to the landowner concerned, he must first conduct a preliminary ocular inspection to determine whether or not the property may be covered under CARP. The foregoing undertaking is reiterated in the latest DAR AO No. 01, s. of2003, entitled "2003 Rules Governing Issuance of Notice of Coverage and Acquisition of Agricultural Lands Under RA 6657." Section 1 [1.1] thereof provides that:
"I.I Commencement by the Municipal Agrarian Reform Officer (MARO) - After determining that a landholding is coverable under the CARP, and upon accomplishment of the Pre-Ocular Inspection Report, the MARO shall prepare the NOC (CARP Form No. 5-1)." (NOC stands for Notice of Coverage)
Found on the records of this case is a ready-made form Preliminary Ocular Inspection Report (undated) signed by the concerned. MARO. Interestingly, however, the check box allotted for the all-important items "Land Condition/Suitability to Agriculture" and "Land Use' was not filled up. There is no separate report on the record detailing the result of the ocular inspection conducted. These circumstances cast serious doubts on whether the MARO actually conducted an on-site ocular inspection of the subject land. Without an ocular inspection, there is no factual basis for the MARO to declare that the subject land is devoted to or suitable for agricultural purposes, more so, issue Notice of Coverage and Notice of Acquisition.
The importance of conducting an ocular inspection cannot be understated. In the event that a piece of land sought to be placed from CARP coverage is later found unsuitable for agricultural purposes, the landowner concerned is entitled to, and the DAR is duty bound to issue, a certificate of exemption pursuant to DAR Memorandum Circular No. 34, s. of 1997, entitled "Issuance of Certificate of Exemption for Lands Subject of Voluntary Offer to Sell (VOS) and Compulsory Acquisition (CA) Found Unsuitable for Agricultural Purposes."
More importantly, the need to conduct ocular inspection to determine initially whether or not the property may be covered under the CARP is one of the steps designed to comply with the requirements of administrative due process. The CARP was not intended to take away property without due process of law (Development Bank of the Philippines vs. Court of Appeals, 262 SCRA 245. [1996]). The exercise of the power of eminent domain requires that due process be observed in the taking of private property. In Roxas & Co., Inc. v. Court of Appeals, 321 SCRA 106 [1999], the Supreme Court nullified the CARP acquisition proceedings because of the DAR's failure to comply with administrative due process of sending Notice of Coverage and Notice of Acquisition of the landowner concerned.
Considering the claim of appellant that the subject land is not agricultural because it is unoccupied and uncultivated, and no agricultural activity is being undertaken thereon, there is a need for the DAR to ascertain whether or not the same may be placed under CARP coverage.6
No less than the Bill of Rights provides that "[n]o person shall be deprived of life, liberty or property without due process of law." Verily, before a piece of land could be placed under the coverage of the CARP, there must first be a showing that the land is an agricultural land or one devoted or suitable for agricultural purposes. In the present case, there is still no conclusive determination if the subject property can be placed under the coverage of the government's agrarian reform program because the procedural requirements that would validate the taking of land for purposes of the CARP were not fully complied with. To be sure, complying and adherence to the procedures outlined by law are part of due process, which should. be accorded to the landowner before being divested of his property.
Verily, being an exercise of police power, the expropriation of private property under RA 6657 puts the landowner, not the government, in a situation where the odds are practically against him.7 Nevertheless, the Comprehensive Agrarian Reform Law was not intended to take away property without due process of law.8 The exercise of the power of eminent domain requires that due process be observed in the taking of private property.9 Therefore, the Order of the Office of the President directing the Department of Agrarian Reform to determine whether or not petitioner's landholdings may be placed under the coverage of the CARP was just and proper.
As a final note, while the agrarian reform program was undertaken primarily for the benefit of our landless farmers, this undertaking should, however, not result in the oppression of landowners. Indeed, although the taking of properties for agrarian reform purposes is a revolutionary kind of expropriation, it should not be carried out at the undue expense of landowners who are also entitled to protection under the Constitution and agrarian reform laws.10
DIOSDADO M. PERALTA
Associate Justice
Footnotes
1 Id.
2 Gonzalo Puyat & Sons, Inc. v. Alcaide, 680 Phil. 609, 614-615 (2012). (Emphasis supplied)
3 Rollo, p. 86.
4 Id. at 103.
5 Comprehensive Agrarian Reform Law of 1988.
6 Rollo, pp. 120-121.
7 Land Bank of the Philippines v. Or ilia, 578 Phil. 663, 673 (2008).
8 Development Bank of the Philippines v. Court of Appeals, 330 Phil. 801, 809 (1996).
9 Roxas & Co., Inc. v. Court of Appeals, 378 Phil. 727, 763 (1999).
10 See Land Bank of the Philippines v. Lajom, G.R. Nos. 184982 and 185048, August 20, 2014, 733 SCRA 511, 526; Land Bank of the Philippines v. Chico, 600 Phil. 272, 291 (2009).
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