DOJ Opinion No. 014, s. 2004

DOJ OPINION NO. 014, s. 2004 February 9, 2004 Mr. Jaime S. Dumlao, Jr. Executive Director Toll Regulatory Board 2/F Integrated Bar of the Phils. Bldg. Doa Julia Vargas Ave., Ortigas Center Pasig City Sir : This is with reference to your request for opinion on the proper basis on which lands to be acquired by your office for road right-of-way should be categorized in order to determine their corresponding BIR Zonal Valuation. The instant query stems from the proposed construction of the South Luzon Expressway Extension at Calamba City to Sto. Tomas, Batangas which links the said expressway to the Southern Tagalog Arterial Road (STAR) project. You state that Republic Act No. 8974 (R.A. No. 8974) provides that a negotiated purchase shall be based on the property's current Zonal Valuation by the Bureau of Internal Revenue (BIR) which categorizes lots as either agricultural, residential, commercial or industrial. In this connection, you raise the question on whether the category of the lot you seek to purchase should be based on the property's actual use or its current category as reflected in its current tax declaration. With regret, this Department has to decline rendition of the requested opinion. Please be informed that as a matter of policy and established precedents, this Department does not render opinion on questions of just compensation, which is a justiciable matter and could at best be resolved only tentatively by the administrative authorities because the final decision rests not with them but with the courts of justice ( Secretary of Justice Opinion No. 95, s. 2002 ). Moreover, the specific issue raised in the instant query necessarily affects the substantive rights of private parties upon whom the opinion of the Secretary of Justice, which is merely advisory in nature, has no binding effect, and who may, in all probability, contest the same in court if the opinion turns out to be adverse to their interests. Inasmuch as the matter herein might subsequently be the subject of judicial controversy, it is neither advisable nor proper for this Office to comment thereon ( Secretary of Justice Opinions No. 89 s. 1999 and No. 31 s. 1997 ). Nonetheless, for your information and guidance, we invite your attention to Section 7 of the Implementing Rules & Regulations (IRR) of R.A. No. 8974 which directs the Implementing Agency to offer "as just compensation the price indicated in the current zonal valuation issued by the Bureau of Internal Revenue (BIR) for the area where the private property is located," to wit: "Section 7. Negotiated Sale of Purchase . If the owner of the property needed for a ROW is not willing to donate his property to the government, the Implementing Agency shall negotiate with the owner for the purchase of the property, offering as just compensation the price indicated in the current zonal valuation issued by the Bureau of Internal Revenue (BIR) for the area where the private property is located . . . ." (Emphasis supplied.) ISDCaT Just compensation has been described as "the just and complete equivalent of the loss which the owner of the thing expropriated has to suffer by reason of the expropriation." 1 It includes not only the correct determination of the amount to be paid to the owner of the land but also the payment of the land within a reasonable period of time from its taking. 2 Expressed differently, the compensation given to the owner is just if he receives for his property a sum equivalent to its "market value" 3 which, according to Section 6 4 of R.A. No. 8974, must be determined following the standards prescribed by Section 5 thereof. 2004dojcd Section 5 of R.A. No. 8974 reads as follows: "Section 5. Standards for the Assessment of the Value of the Land Subject of Expropriation Proceedings or Negotiated Sale . In order to facilitate the determination of just compensation, the court may consider, among other well-established factors, the following relevant standards: (a) The classification and use for which the property is suited; (b) The developmental costs for improving the land; (c) The value declared by the owners; (d) The current selling price of similar lands in the vicinity; (e) The reasonable disturbance compensation for the removal and/or demolition of certain improvements on the land and for the value of improvements thereon; (f) The size, shape or location, tax declaration and zonal valuation of the land; (g) The price of the land as manifested in the ocular findings, oral as well as documentary evidence presented; and (h) Such facts and events as to enable the affected property owners to have sufficient funds to acquire similarly-situated lands of approximate areas as those required from them by the government, and thereby rehabilitate themselves as early as possible." DCSTAH Very truly yours, (SGD.) MA. MERCEDITAS N. GUTIERREZ Acting Secretary Footnotes 1. Bernas, Joaquin G., The 1987 Philippine Constitution, A Reviewer-Primer , 1997 Ed., pp. 118, citing Province of Tayabas v. Perez , 66 Phil. 467, 469 (1938). 2. Ibid ., p. 119, citing Municipality of Makati v. Court of Appeals , 190 SCRA 206, 213 (1990). 3. Ibid . 4. Section 6. Guidelines for Negotiated Sale . Should the implementing agency and the owner of the property agree on a negotiated sale for the acquisition of right-of-way, site or location for any national government infrastructure project, the standards prescribed under Section 5 hereof shall be used to determine the fair market value of the property , subject to review and approval by the head of the agency or department concerned. (Italics supplied.)