CREBA vs. Sec.

of Agrarian Reform, GR 183409, June 18, 2010

Fact:

The Secretary of Agrarian Reform issued, on 29 October 1997, DAR

AO No. 07-97,3 entitled “Omnibus Rules and Procedures Governing
Conversion of Agricultural Lands to Non-Agricultural Uses,” which
consolidated all existing implementing guidelines related to land
use conversion. The aforesaid rules embraced all private agricultural
lands regardless of tenurial arrangement and commodity produced,
and all untitled agricultural lands and agricultural lands reclassified
by Local Government Units (LGUs) into non-agricultural uses after
15 June 1988. Subsequently, on 30 March 1999, the Secretary of
Agrarian Reform issued DAR AO No. 01-99,4 entitled “Revised Rules
and Regulations on the Conversion of Agricultural Lands to Non-
agricultural Uses,” amending and updating the previous rules on
land use conversion. Its coverage includes the following agricultural
lands, to wit:

(1) those to be converted to residential, commercial, industrial,

institutional and other non-agricultural purposes;

(2) those to be devoted to another type of agricultural activity such

as livestock, poultry, and fishpond ─ the effect of which is to
exempt the land from the Comprehensive Agrarian Reform Program
(CARP) coverage;

(3) those to be converted to non-agricultural use other than that

previously authorized; and

(4) those reclassified to residential, commercial, industrial, or other

non-agricultural uses on or after the effectivity of Republic Act No.
 66575 on 15 June 1988 pursuant to Section 206 of Republic Act No.
71607 and other pertinent laws and regulations, and are to be
converted to such uses.

On 28 February 2002, the Secretary of Agrarian Reform issued

another Administrative Order, i.e., DAR AO No. 01-02, entitled “2002
Comprehensive Rules on Land Use Conversion,” which further
amended DAR AO No. 07-97 and DAR AO No. 01-99, and repealed
all issuances inconsistent therewith. The aforesaid DAR AO No. 01-
02 covers all applications for conversion from agricultural to
non-agricultural uses or to another agricultural use. Thereafter,
on 2 August 2007, the Secretary of Agrarian Reform amended
certain provisions of DAR AO No. 01-02 by formulating DAR AO No.
05-07, particularly addressing land conversion in time of exigencies
and calamities. To address the unabated conversion of prime
agricultural lands for real estate development, the Secretary of
Agrarian Reform further issued Memorandum No. 88 on 15 April
2008, which temporarily suspended the processing and approval of
all land use conversion applications. By reason thereof, petitioner
claims that there is an actual slow down of housing projects, which,
in turn, aggravated the housing shortage, unemployment and illegal
squatting problems to the substantial prejudice not only of the
petitioner and its members but more so of the whole nation. Adrian
Avilado Antazo

Hence, this petition.

Issues:

1. Whether the DAR secretary has jurisdiction over lands that

have been reclassified as residential, commercial, industrial, or for
other non-agricultural uses.
2. Whether the DAR secretary acted in excess of his jurisdiction
and gravely abused his discretion by issuing and enforcing [DAR ao
no. 01-02, as amended] which seek to regulate reclassified lands.
3. Whether [DAR ao no. 01-02, as amended] violate[s] the local
autonomy of local government units.
4. Whether [DAR ao no. 01-02, as amended] violate[s] the due
process and equal protection clause[s] of the constitution.
5. Whether memorandum no. 88 is a valid exercise of police
power.

Held:

1. Yes, Executive Order No. 129-A37 vested upon the DAR the
responsibility of implementing the CARP. Pursuant to the said
mandate and to ensure the successful implementation of the CARP,
Section 5(c) of the said executive order authorized the DAR to
establish and promulgate operational policies, rules and regulations
and priorities for agrarian reform implementation. Section 4(k)
thereof authorized the DAR to approve or disapprove the
conversion, restructuring or readjustment of agricultural lands into
non-agricultural uses. Similarly, Section 5(l) of the same executive
order has given the DAR the 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. Section 7 of the aforesaid executive order clearly provides
that “the authority and responsibility for the exercise of the
mandate of the [DAR] and the discharge of its powers and functions
shall be vested in the Secretary of Agrarian Reform x x x.” Under
DAR AO No. 01-02, as amended, “lands not reclassified as
residential, commercial, industrial or other non-agricultural uses
before 15 June 1988” have been included in the definition of
agricultural lands. In so doing, the Secretary of Agrarian Reform
 merely acted within the scope of his authority stated in the
aforesaid sections of Executive Order No. 129-A, which is to
promulgate rules and regulations for agrarian reform
implementation and that includes the authority to define
agricultural lands for purposes of land use conversion. Further, the
definition of agricultural lands under DAR AO No. 01-02, as
amended, merely refers to the category of agricultural lands that
may be the subject for conversion to non-agricultural uses and is
not in any way confined to agricultural lands in the context of land
redistribution as provided for under Republic Act No. 6657.
2. No, petitioner failed to specifically and sufficiently set forth
special and important reasons to justify direct recourse to this Court
and why this Court should give due course to this petition in the
first instance, hereby failing to fulfill the conditions set forth in Heirs
of Bertuldo Hinog v. Melicor. The present petition should have been
initially filed in the Court of Appeals in strict observance of the
doctrine on the hierarchy of courts. Failure to do so is sufficient
cause for the dismissal of this petition. Moreover, although the
instant petition is styled as a Petition for Certiorari, in essence, it
seeks the declaration by this Court of the unconstitutionality or
illegality of the questioned DAR AO No. 01-02, as amended, and
Memorandum No. 88. It, thus, partakes of the nature of a Petition
for Declaratory Relief over which this Court has only appellate, not
original, jurisdiction. With that, this Petition must necessarily fail
because this Court does not have original jurisdiction over a Petition
for Declaratory Relief even if only questions of law are involved.
Even if the petitioner has properly observed the doctrine of judicial
hierarchy, the Petition is still dismissible. The special civil action for
certiorari is intended for the correction of errors of jurisdiction only
or grave abuse of discretion amounting to lack or excess of
jurisdiction. Its principal office is only to keep the inferior court
within the parameters of its jurisdiction or to prevent it from
committing such a grave abuse of discretion amounting to lack or
excess of jurisdiction.
3. No, the [DAR ao no. 01-02, as amended] did not violate[s] the
local autonomy of local government units. It is of no moment
whether the reclassification of agricultural lands to residential,
commercial, industrial or other non-agricultural uses was done by
the LGUs or by way of Presidential Proclamations because either
way they must still undergo conversion process. It bears stressing
that the act of reclassifying agricultural lands to non-agricultural
uses simply specifies how agricultural lands shall be utilized for non-
agricultural uses and does not automatically convert agricultural
lands to non-agricultural uses or for other purposes. As explained in
DAR Memorandum Circular No. 7, Series of 1994, cited in the 2009
case of Roxas & Company, Inc. v. DAMBA-NFSW and the
Department of Agrarian Reform,47 reclassification of lands denotes
their allocation into some specific use and providing for the manner
of their utilization and disposition or the act of specifying how
agricultural lands shall be utilized for non-agricultural uses such as
residential, industrial, or commercial, as embodied in the land use
plan. For reclassified agricultural lands, therefore, to be used for the
purpose to which they are intended there is still a need to change
the current use thereof through the process of conversion. The
authority to do so is vested in the DAR, which is mandated to
preserve and maintain agricultural lands with increased productivity.
Thus, notwithstanding the reclassification of agricultural lands to
non-agricultural uses, they must still undergo conversion before
they can be used for other purposes.
4. No, [DAR ao no. 01-02, as amended] does not also violate the
due process clause, as well as the equal protection clause of the
Constitution. In providing administrative and criminal penalties in
the said administrative order, the Secretary of Agrarian Reform
simply implements the provisions of Sections 73 and 74 of Republic
Act No. 6657.
5. No, memorandum no. 88 is a valid exercise of police power.
The petitioner’s argument that DAR Memorandum No. 88 is
unconstitutional, as it suspends the land use conversion without any
basis, stands on hollow ground. It bears emphasis that said
Memorandum No. 88 was issued upon the instruction of the
President in order to address the unabated conversion of prime
agricultural lands for real estate development because of the
worsening rice shortage in the country at that time. Such measure
was made in order to ensure that there are enough agricultural
lands in which rice cultivation and production may be carried into.
The issuance of said Memorandum No. 88 was made pursuant to
the general welfare of the public, thus, it cannot be argued that it
was made without any basis.