FEATURED ARTICLES
“The Limitations on Expropriation Under Commonwealth Act No. 141”
By James Gerard M. Baello
Private landowners who acquired their lands under Commonwealth Act No. 141, as amended by Presidential Decree No. 1361 dated 26 April 1978, for homestead settlement, by sale or lease, or by confirmation of imperfect or incomplete titles, whether by judicial legalization or by administrative legalization (free patent), hold Torrens titles that are subject to a statutory lien consisting of a right-of-way
not exceeding sixty (60) meters in width which the Government may expropriate for the construction of a government infrastructure project, like a road or an airport.
Section 112 of Commonwealth Act No. 141, as amended, provides:
SEC. 112. Said land shall further be subject to a right-of-way not exceeding sixty (60) meters in width for public highways, railroads, irrigation ditches, aqueducts, telegraph and telephone lines, airport runways, including sites necessary for terminal buildings and other government structures needed for full operation of the airport, as well as areas and sites for government buildings for Resident and/or Project Engineers needed in the prosecution of government-infrastructure projects, and similar works as the Government or any public or quasi-public service or enterprise, including mining or forest concessionaires, may reasonably require for carrying on their business,
with damages for the improvements only.
Government officials charged with the prosecution of these projects or their representatives are authorized to take immediate possession of the portion of the property subject of the lien as soon as the need arises and after due notice to the owners.
It is however, understood that ownership over said properties shall immediately revert to the title holders should the airport be abandoned or when the infrastructure projects are completed and buildings used by project engineers are abandoned or dismantled, but subject to the same lien for future improvements. (Underscoring supplied.)
The question has been asked whether the Government can so expropriate without having to pay just compensation and without instituting expropriation proceedings in court. The Government has no such power.
The power of eminent domain is “the right of a government to take and appropriate private property to public use, whenever the public exigency requires it,
which can be done only on condition of providing a reasonable compensation therefor.”
1
“The exercise of the power of eminent domain is constrained by two constitutional provisions: (1) that private property shall not be taken for public use without
just compensation under Article III (Bill of Rights), Section 9 and (2) that no person shall be deprived of his life, liberty or property without due process of law
under Art. III, Sec. 1.”2
Before even setting foot on the landowner's private property, the Republic must first consult and convince the landowner to consent to (i)
the taking of his property for public use, and (ii) the just compensation for such taking. Thus, the Supreme Court held that “[o]n due process, it is likewise basic
under the Constitution that the property owner must be afforded a reasonable opportunity to be heard on the issues of public use and just compensation and to present
objections to and claims on them.” 3
If the landowner does not consent to the taking of his property (e.g., he does not agree that it will be taken for a public purpose or there is a public necessity), the Republic must resort to expropriation. If the landowner consents to the taking of his property but not to the compensation offered by the Republic, the Republic must resort to expropriation. In other words, if the landowner does not consent to either (i) the taking of his property for public use, or (ii) the compensation therefor, or both, the Republic must institute expropriation proceedings in court.
In the expropriation case, the Republic must show the public purpose and necessity of the taking, and deposit the compensation and prove the fairness thereof. In due course, the court will issue a writ of possession allowing the Republic to enter and take possession of the expropriated property. Then, and only then, can the Republic set foot or take possession of the expropriated property.
The Republic cannot shortcut the legal process. If the landowner objects to the taking of his property and/or the compensation, the Republic cannot force the landowner to surrender his property on mere notice, or upon a promise to pay compensation later, or without securing a writ of possession from a court of law. If the landowner objects, the Republic must go to court. It has no other choice.
“[T]aking of private property without filing any complaint before a court of law under Rule 67 of the Rules of Court or existing laws is patently felonious, confiscatory, and unconstitutional. Judicial notice can be taken of some instances wherein some government agencies or corporations peremptorily took possession of private properties and usurped the owner's real rights for their immediate use without first instituting the required court action. Running roughshod over the property rights of individuals is a clear and gross breach of the constitutional guarantee of due process, which should not be countenanced in a society where the rule of law holds sway.” 4
Section 112 of Commonwealth Act No. 141, insofar as it allows the taking of private property by mere notice and without payment of just compensation, is oppressive, confiscatory and unconstitutional, being repugnant to Article III §1 and §9 of the Constitution. It is void, and of no force and effect.
As held in Sabio vs. Gordon5 , a statute may be declared unconstitutional if it creates or establishes methods or forms that infringe constitutional principles, or its purpose or effect violates the Constitution or its basic principles. All existing laws, executive orders, proclamations, letters of instructions and other executive issuances inconsistent or repugnant to the Constitution are repealed.
In a proper case, an aggrieved private landowner can ask the court to declare Section 112 of Commonwealth Act No. 141, insofar as it allows the taking of private property by mere notice, without judicial permission, and without payment of just compensation, as unconstitutional, void, repealed, and of no force and effect.
The exercise of the power of eminent domain is also constrained by requirements, guidelines and standards prescribed by statute. The prevailing and controlling statute is Republic Act No. 8974 which was enacted by Congress on 7 November 2000.
Republic Act No. 8974 provides that real properties needed as rights-of-way, site or location for any national government infrastructure projects shall only be acquired through donation, negotiated sale, expropriation or any other mode of acquisition as provided by law.
Significantly, Section 3 of Republic Act No. 8974 does not provide any exception. It speaks of real properties in general, without any distinction, classification or condition whatsoever. Thus, Republic Act No. 8974 applies to any and all forms of private property taken for public use. Under Republic Act No. 8974, any lands to be acquired as rights-of-way, including lands originating from special patents, cannot be acquired by mere notice because notice-giving is not among the modes provided under Republic Act No. 8974. Neither is mere notice-giving a mode of acquisition under the Civil Code. Also, under Republic Act No. 8974, any lands to be acquired as rights-of-way, including lands originating from special patents, cannot be acquired without payment of just compensation because all of the modes provided under Section 3 of Republic Act No. 8974 entail payment of just compensation or, at least, a voluntary waiver thereof by the landowner. If the landowner objects to the taking of his property or the amount offered for compensation, the law requires the Republic to go to court and, among other things, secure a writ of possession before entering or taking possession of the private property.
Moreover, insofar as it allows the taking of private property by mere notice and without payment of just compensation, Section 112 of Commonwealth Act No. 141 is inconsistent with Republic Act No. 8974, and is thus deemed repealed or amended thereby.
Any agency within the Executive branch of government seeking to expropriate private land under Section 112 and Commonwealth Act No. 141 is further bound by executive and administrative issuances which prescribe policies, directives, rules, regulations, requirements, guidelines and standards for the exercise of the power of eminent domain. The pertinent executive fiat is the Implementing Rules and Regulations (“IRR”) of Republic Act No. 8974.
At first blush, Section 5 of the IRR of Republic Act No. 8974 seems to recognize the subsistence of Section 112 of Commonwealth Act No. 141. However, a careful reading of the IRR reveals that it, in fact, affirms that lands to be acquired as rights-of-way, including those originating from special patents under Commonwealth Act No. 141, cannot be acquired by mere notice. Section 5 of the IRR of Republic Act No. 8974 requires, at the very least, a quitclaim from the landowner. This quitclaim implies that the landowner consents to the taking of his private property and amounts to a voluntary waiver on the part of the landowner to be paid compensation.
The statement in Section 5 of the IRR of Republic Act No. 8974 that “[n]o payment by the government shall be made for land acquired under the quit claim mode” does not mean that the Republic is not obliged or required to pay just compensation. It simply means that, if the landowner waives his right to just compensation under the quitclaim mode, the Republic, as a result, would be released from such an obligation.
Mere notice-giving will not suffice under the IRR of Republic Act No. 8974. If the landowner objects to the taking of his property, the Republic must initiate expropriation proceedings, in accordance with Section 8 of the IRR of Republic Act No. 8974, prior to taking possession of the private property.
Also, the payment of just compensation is not an option; it is a mandatory requirement as provided under Section 13 of the IRR of Republic Act No. 8974.
Even prior to the IRR of Republic Act No. 8974, the President of the Republic had long directed executive officials to pursue only two (2) modes of taking private property for public use. They were negotiated sale and expropriation only. One such executive issuance was Executive Order No. 1035 issued by President Ferdinand E. Marcos on 25 June 1985. Another was Administrative Order No. 50 issued by President Joseph E. Estrada on 17 February 1999.”
1 Masikip vs. City of Pasig, G.R. No. 136349, 23 January 2006, 479 SCRA 391, 400.
2 Barangay Sindalan, San Fernando, Pampanga vs. Court of Appeals, G.R. No. 150640, 22 March 2007, 518 SCRA 649, 658.
3 Barangay Sindalan, San Fernando, Pampanga vs. Court of Appeals, supra at p. 661.
4 Emphasis and underscoring supplied; Barangay Sindalan, San Fernando, Pampanga vs. Court of Appeals, supra at p. 661.
5 G.R. Nos. 174340, 174318 and 174177, 17 October 2006, 504 SCRA 704, 730-731.