COMPLAINT
Republic of the Philippines
REGIONAL TRIAL COURT
FIRST JUDICIAL REGION
Branch 48
Urdaneta City
REPUBLIC OF THE PHILIPPINES, represented by the Department of Public Works and Highways (DPWH),
Plaintiff,
– versus –
Civil Case No.U-10246
For: Expropriation (TPLEX ROW Project) JUANITO ESTRADA AND FELICITAS L. ELLAZAR, represented by VICTORIA ELLAZAR, Defendants.
x—————————x
TO: JUANITO ESTRADA AND FELICITAS ELLAZAR Honolulu, Hawaii USA
SUMMONS (By Publication)
WHEREAS, the herein plaintiff filed a verified complaint on February 5, 2013, herein quoted as follows:
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.
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”.
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 anytime 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 the improvements and/or structures as determined under Section 7 hereof;
xxx xxx xxx
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.
xxx xxx xxx”
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:
“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 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.
Makati City for Urdaneta City, Pangasinan, July 25, 2013.
(SGD.)
FRANCIS H. JARDELEZA
Solicitor General
Roll No. 25719
IBP Lifetime No. 00037 – 1/18/93
MCLE Exemption No. III-0008523
(SGD.) ELLAINE ROSE A. SANCHEZ-CORRO
Assistant Solicitor General
Roll No. 36514
Lifetime IBP No. 02444
MCLE Exemption No. IV-000369145, 6/20/2012
(SGD.) EDGARDO R. SISON
Senior State Solicitor
Roll No. 39911
IBP No. 921188, 5/17/113
MCLE Compliance No. IV-0009176, 11/13/12
(SGD.) ERIC C. GABATINO
State Solicitor
Roll No. 52626
IBP No. 924552, 1/11/13
MCLE Compliance No.
IV-0009181, 11/13/12
(SGD.) PETER FILIP S. ABELITA
Associate Solicitor
Roll No. 56486
IBP No. 909046, 12/12/12
MCLE No. IV-0009174, 11/13/12
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street,
Legaspi Village
Makati City
Telephone Nos. 818-6301 to 09
WHEREAS, on September 3, 2013, the Honorable Court Branch 48, this jurisdiction, issued an Order, which read as follows:
“ xxx xxx xxx xxx xxx xxx.
Finding the instant complaint to be sufficient in form and substance, let summons be issued and served upon the person of the defendant. Considering however, the prayer for extraterritorial service of summons, let service of summons be effected by publication in a newspaper of general circulation in the Philippines requiring the defendant to file his answer or any responsive pleading thereto within sixty (60) days from date of publication and a copy of the summons and the Order of this Court be furnished the defendant by registered mail at his last known address.
SO ORDERED.
xxx xxx xxx xxx xxx xxx.”
NOW THEREFORE, you are hereby required to file within sixty (60) days from date of the last publication of this summons, with the Honorable Court, Branch 48, this jurisdiction your answer to the complaint filed by plaintiff through its counsel, Office of the Solicitor General, in the above-captioned case.
You are further required to serve a copy of your answer upon the plaintiff through its counsel at 134 Amorsolo St., Legaspi Village, Makati City.
In the event that you fail to file your answer and/or responsive pleading within the aforementioned period of time, the Court shall proceed to render judgment granting the plaintiff such relief as his pleading may warrant, unless the Court in its discretion requires the plaintiff to submit evidence.
WITNESS, the Honorable GONZALO P. MARATA, Presiding Judge of the Regional Trial Court, Branch 48, Urdaneta City, this 3rd day of October, 2013.
(SGD.) ATTY. LEOPOLDO C. DE VERA JR.
Branch Clerk of Court
Copy furnished:
Office of the Solicitor General
134 Amorsolo St., Legaspi Village, Makati city
The Publisher
Sunday Punch
A.B. Fernandez Ave., Dagupan City
November 24, Dec. 1 and 8, 2013
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