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Republic of the Philippines
REGIONAL TRIAL COURT
8th Judicial Region
BRANCH 13
Carigara, Leyte
REPUBLIC OF THE PHILIPPINES, Civil Case No. 10246
represented by the For:
Department of Public Works and Highways, Expropriation
Plaintiff,
– versus –
JUANITO ESTRADA AND
FELICITAS L. ELLAZAR,
represented by VICTORIA ELLAZAR,
Defendants.
x---------------------------------------x
COMPLAINT
WITH PRAYER FOR EXTRA-TERRITORIAL SERVICE OF
SUMMONS AND URGENT EX-PARTE MOTION FOR THE ISSUANCE
OF A WRIT OF POSSESSION)
PLAINTIFF, Republic of the Philippines, represented by the Department
of Public Works and Highways (DPWH), by counsel, respectfully states:
1. Plaintiff, through the DPWH, is a sovereign political entity vested with
the power and authority to condemn and expropriate private property for public
use upon payment of just compensation, pursuant to Section 7 of Executive
Order No. 1035 dated June 25, 1985. It is represented in this action by the
Office of the Solicitor General (OSG) with address at 134 Amorsolo Street,
Legaspi Village, Makati City, where it may be served with pleadings, motions
and other papers, and court processes.
2. Defendant Felicitas L. Ellazar married to defendant Juanito Estrada is
the registered owner of the property for expropriation. As per Affidavit of
Waiver of Rights, Possession and Ownership dated March 22, 2011, and
Special Power of Attorney dated March 18, 2011, said defendants are residing
in Honolulu, Hawaii, U.S.A. with defendant Felicitas L. Ellazar appointing
Victoria Ellazar as her Attorney-in-fact for certain transactions involving the
subject property
3.Defendant spouses may be served extraterritorially by publication and
registered mail pursuant to Section 15, Rule 14 of the Rules of Court while
Victoria Ellazar may be served at Dilan-Paurido, Urdaneta, Pangasinan.
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4. Pursuant to its rights under Executive Order No. 1035, the DPWH is
implementing the construction of the Tarlac-Pangasinan-La Union Toll
Expressway Project (TPLEX) which aims to provide a high-speed toll road
along the Tarlac-Pangasinan-La Union corridor and contribute to the
development of the Luzon Urban Belt Way Super Region. Copies of the
Project’s Road Alignment Plan, Project Profile and Certification of Availability
of Fund covering the amount needed for the acquisition of lots and
improvements are hereto attached as Annexes “A”, “B” and “C”.
5. The property sought to be expropriated would be traversed by the
construction of the TPLEX Project, a public purpose authorized by law. In this
regard, an Environmental Compliance Certificate (ECC) has been secured from
the Department of Environment and Natural Resources (DENR). A copy of
ECC No. 0301-002-208 dated August 12, 2003 is hereto attached as Annex
“D”.
6.The Six Hundred Eighty Five (685) and Two Hundred Eighty (280)
square meter property for expropriation, shaded and indicated as Lots 26-B and
30-B in plaintiff’s parcellary plan hereto attached as Annex “E” and “E-1”, are
portions of Lot 26 and 30 covered by Transfer Certificate of Title (TCT) No.
322434 and Tax Declaration ARPN-AB-45015-01342 and ARPN-AB-01368 in
the name of the defendant Felicitas Ellazar married to defendant Juanito
Estrada, containing an area of One Thousand Three Hundred Twenty Eight (1,
328) for said Lot 26 and Two Thousand Fifty Six (2,056) square meters for lot
30, more or less, both located in Barangay Cabuloan, Urdaneta, Pangasinan.
7.The total valuation of Six Hundred Eighty-Five (685) and Two
Hundred Eighty (280) square meters at Bureau of Internal Revenue (BIR) zonal
valuation of Three Hundred Pesos (Php300.00) per square meter is Two
Hundred Eighty-Nine Thousand Five Hundred Pesos (Php289, 500.00). The
foregoing details may be summarized as follows:
Copies of the Transfer Certificate of Title (TCT) No. 322424 and Tax
declaration Nos. ARPN_AB-45015-01342 and ARPN-AB_45015-01368 and
BIR Certification on the relevant zonal valuation are hereto attached as
Annexes “F”, “G”, “G-1” and “H”.
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8. The parcel of land referred to above has not been applied to or
expropriated for public use and is indispensable in implementing the TPLEX
Project. It was selected by plaintiff in a manner compatible with the greatest
public good and with the least injury to private property.
9.Under Section 7 of Executive Order No. 1035 dated June 25, 1985,
plaintiff through the DPWH, is authorized to institute expropriation proceedings
through the Office of the Solicitor General.
10. Plaintiff exerted efforts to acquire the above-described property by
negotiated sale pursuant to Section 6 of R.A. 8974, but the same failed for
which reason expropriation is sought herein.
11. The determination of just compensation in expropriation cases is a
judicial function, which should be discharged at the trial on the merits with the
assistance of not more than three (3) commissioners pursuant to Sections 5 to 8,
Rule 67 of the Rules of Court. However, upon the filing of the complaint, or at
any time thereafter, and after due notice to defendant, plaintiff is authorized to
take possession and enter into the property involved, upon payment of the
amount equivalent to “one hundred percent [100%] of the zonal value” of the
land to be taken based on the current zonal valuation of the BIR, conformably
with Republic Act No. 8974.
12. Plaintiff is able and ready to pay defendant owner Felicitas L. Ellazar
the amount of Two Hundred Eighty-Nine Thousand Five Hundred Pesos
(Php289, 500.00), which is equivalent to one hundred percent [100%] of the
zonal value of the property sought to be expropriated, and to make the
necessary deposit with this Honorable Court of such amount in compliance with
the required payment under R.A. 8974. The corresponding check, payable in
the name of said defendant owner, is available and will be deposited with this
Honorable Court prior to the issuance of the writ of possession.
ALLEGATIONS IN SUPPORT OF THE URGENT PRAYER
FOR THE ISSUANCE OF A WRIT OF POSSESSION
13. Section 4 of R.A. No. 8974 lays down the guidelines in expropriation
proceedings as follows:
“Sec. 4. Guidelines for Expropriation Proceedings. – Whenever it is
necessary to acquire real property for the right-of-way, site or location for any
national government infrastructure project through expropriation, the
appropriate implementing agency shall initiate the expropriation proceedings
before the proper court under the following guidelines:
(a) Upon the filing of the complaint, and after due notice to the
defendant, the implementing agency shall immediately pay the owner of
the property the amount equivalent to the sum of (1) one hundred percent
(100%) of the value of the property based on the current relevant zonal
valuation of the Bureau of Internal Revenue (BIR); and (2) the value of
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the improvements and/or structures as determined under Section 7
hereof;
Upon compliance with the guidelines above-mentioned, the court shall
immediately issue to the implementing agency an order to take possession of
the property and start the implementation of the project.
Before the court can issue a Writ of Possession, the implementing agency
shall present to the court a certificate of availability of funds from the proper
official concerned.
14. Upon service of summons to the defendants, due notice on the herein
motion is deemed served pursuant to the above-quoted section. After deposit of
the check corresponding to 100% of the value of the property based on the
current relevant zonal valuation of the BIR, plaintiff is thus entitled to the
issuance of a writ of possession, which is urgently needed in order for plaintiff
to implement the (TPLEX) Project.
15. Capitol Steel Corporation vs. Phividec Industrial Authority declares
that the issuance of a writ of possession is a ministerial duty of this Honorable
Court upon plaintiff’s compliance with the guidelines set forth in Section 4 of
R.A. No. 8974, supra:
Under R.A. 8974, the requirements for authorizing immediate entry in
expropriation proceedings involving real property are: (1) the filing of a
complaint for expropriation sufficient in form and substance; (2) due notice to
the defendant; (3) payment of an amount equivalent to 100% of the value of the
property based on the current relevant zonal valuation of the BIR including
payment of the value of improvements and/or structures if any, or if no such
valuation is available and in cases of utmost urgency, the payment of the
proffered value of the property to be seized; and (4) presentation to the court of
a certificate of availability of funds from the proper officials.
Upon compliance with the requirements, a petitioner in an expropriation
case, in this case respondent, is entitled to a writ of possession as a matter of
right and it becomes the ministerial duty of the trial court to forthwith issue the
writ of possession. No hearing is required and the court neither exercises its
discretion or judgment in determining the amount of the provisional value of
the properties to be expropriated as the legislature has fixed the amount under
Section 4 of R.A. 8974.
16. Also, it is imperative for the protection of the interest of the
government vis-a-vis its real rights over the subject property that the
corresponding writ of possession issued in the above-entitled case be entered in
the Primary Entry Book of the Register of Deeds of Pangasinan and thereafter,
annotated in the space provided in its Registration Book pursuant to Section 69
of Presidential Decree No. 1529, otherwise known as the Property Registration
Decree:
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“Section 69. – Attachments. An attachment, or a copy of any writ, order
or process issued by a court of record, intended to create or preserve any lien,
status, right, or attachment upon registered land, shall be filed and registered in
the Registry of Deeds for the province or city in which the land lies, and, in
addition to the particulars required in such papers for registration, shall contain
a reference to the number of the certificate of title to be effected and the
registered owner or owners thereof, and also if the attachment, order, process or
lien is not claimed on all land in any certificate of title a description sufficiently
accurate for identification of the land or interest to be affected. A restraining
order, injunction, or mandamus issued by the court shall be entered and
registered on the certificate of title affected, free of charge.”
17. To ensure that the subject property is free from statutory lien, it is
necessary that defendants registered owners be required to present proof of
payment of the corresponding realty taxes before the check is released to them.
PRAYER
WHEREFORE, plaintiff respectfully prays that:
(i) Extraterritorial service of summons to non-resident defendant
be effected by way of publication once in a newspaper of a general
circulation in the Province of Pangasinan with a copy of said summons
and the accompanying order of this Honorable Court sent to her last
known address via registered mail pursuant to Section 15, Rule 14 of the
Rules of Court;
(ii) Plaintiff be authorized, by proper order and writ to take
immediate possession, control and disposition of the subject land sought
to be expropriated, upon plaintiff’s deposit with the Office of the Clerk of
Court, Multiple Sala, Regional Trial Court, Urdaneta City, Pangasinan, of
a check payment equivalent to one hundred percent (100%) of the BIR
current zonal valuation for the affected property in the name of defendant
owner; and for the office of said Clerk of Court to safe keep and release
the same to said defendant or her SUBJECT TO CLEARANCE from the
plaintiff of her satisfaction or completion of proofs of ownership in
accordance with its Road Right-Of-Way Implementing Rules and
Regulations and Commission on Audit (COA) requirements.
(iii) An Order be issued directing the Register of Deeds of the
place having territorial jurisdiction over the subject property to enter the
Writ of Possession in the Primary Entry Book and annotate the same in
the Registration Book pursuant to Section 69 of P.D. 1529;
(iv) After decreeing plaintiff’s right of condemnation and
determining the just compensation therefor, plaintiff be authorized to pay
just compensation to the defendant owner, after deducting the sum due
the government for the unpaid real property taxes, if any, and the
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amounts paid/deposited as provisional value as well as any amount
necessary to discharge any lien or encumbrances; and,
(v) Judgment be rendered condemning the property subject of the
present case, free from all liens and encumbrances whatsoever, for public
use and for the public purpose herein set forth.
(vi) Directing the same Register of Deeds to cause the registration
and annotation of the decision or judgment to the instant eminent
domain/expropriation case covering the road right-of-way of the Tarlac-
Pangasinan-La Union Expressway (TPLEX) Project.
Plaintiff further prays for such other reliefs and remedies which this
Honorable Court may deem just and equitable under the premises.
Tacloban City. 28 November 2020.
FRANCIS LOUIE A. HUMAWID
Counsel for the Defendants
253 Avenida Veteranos, Tacloban City
ROA No. 47379
IBP Lifetime No. 00433
PTR No. 4338003; 1-2-08; Tacloban City
MCLE Compliance No. II-0011496; 8-26-20
Copy furnished:
Office of the Solicitor General
134 Amorsolo St., Legaspi Village, Makati city
The Publisher
Sunday Punch
A.B. Fernandez Ave., Dagupan City
VERIFICATION AND CERTIFICATION
OF NON-FORUM SHOPPING
Republic of the Philippines )
Province of Leyte ) SS
In the City of Tacloban )
VERIFICATION AND CERTIFICATION
OF NON-FORUM SHOPPING
I, ATTY. ANTON H. KALSADA, under oath state:
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I am the representative of the plaintiff in the above-entitled complaint;
that I have caused the preparation of this complaint; I have read this complaint
and that the allegations herein are true and correct of my own personal
knowledge and based on authentic records/documents; and
The plaintiff has not theretofore commenced any action or filed any
claim involving the same issues in any other court, tribunal or quasi-judicial
agency and, to the best of my knowledge, no such other action or claim is
pending therein; and if we should thereafter learn that the same or similar action
or claim has been filed or pending in any other court, tribunal or quasi-judicial
agency, we shall report that fact within 5 days therefrom to this Honorable
Court.
IN WITNESS WHEREOF, I have hereunto set my hand this 28
November 2020 in Tacloban City, Philippines.
ATTY. ANTON H. KALSADA
Affiant
SUBSCRIBED AND SWORN to before me this 20 April 2020 at
Tacloban City, by affiant ATTY. ANTON H. KALSADA, who is identified by
me through competent evidence of his UMID No. CRN-0006-0504571-6 to be
the same person who personally signed before me the foregoing Verification
and Certification of Non-Forum Shopping, and acknowledged that he has the
authority to sign the same.
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SERIES OF 2020
