SECOND
DIVISION
C &
M TIMBER CORPORATION [CMTC],
Petitioner,
G. R. No. 111088
June 13, 1997
-versus-
HON.
ANGEL C. ALCALA, SECRETARY OFTHE
DEPARTMENT OF ENVIRONMENT ANDNATURAL
RESOURCES, HON. ANTONIO T.chanrobles virtual law library
CARPIO, CHIEF
PRESIDENTIAL LEGAL
COUNSEL
and HON.
RENATO C. CORONA,
ASSISTANT EXECUTIVE
SECRETARY FORLEGAL AFFAIRS,
Respondents.
D
E C I S I O N
MENDOZA, J.:
This is a
Petition for
Certiorari by
which C
& M Timber Corporation seeks the nullification of the Order dated
February
26, 1993 and the resolution dated June 7, 1993 of the Office of the
President,
declaring as of no force and effect, Timber License Agreement [TLA] No.
106 issued to petitioner on June 30, 1972. TLA No. 106, with the expiry
date June 30, 1997, covers 67,680 hectares of forest land in the
municipalities
of Dipaculao and Dinalongan in the Province of Aurora and the
Municipality
of Maddela in Quirino province.[1]
It appears that
in a letter dated July 20, 1984[2]
to President Marcos, Filipinas Loggers Development Corporation [FLDC],
through its president and general manager, requested a timber
concession
over the same area covered by petitioner's TLA No. 106, alleging that
the
same had been cancelled pursuant to a presidential directive banning
all
forms of logging in the area. The request was granted in a note dated
August
14, 1984 by President Marcos who wrote, as was his wont, on the margin
of the letter of FLDC: "Approved."[3]
Accordingly, on
September 21, 1984, the Ministry
of Natural Resources, as it was then called, issued TLA No. 360, with
the
expiry date September 30, 1994, to FLDC, covering the area subject of
TLA
No. 106. In 1985, FLDC began logging operations. On June 26,
1986,
then Minister of Natural Resources Ernesto M. Maceda suspended TLA No.
360 for FLDC's "gross violation of the terms and conditions thereof,
especially
the reforestation and selective logging activities and in consonance
with
the national policy on forest conservation."[4]
On July 26, 1986, Minister Maceda issued another order cancelling the
license
of FLDC on the ground that "in spite of the suspension order dated June
26, 1986, said concessionaire has continued logging operations in
violation
of forestry rules and regulations."[5]
Learning of the
cancellation of FLDC's TLA, petitioner,
through its officer-in-charge, wrote Minister Maceda a letter dated
October
10, 1986, requesting "revalidation" of its TLA No. 106.[6]
As FLDC sought a reconsideration of the order cancelling its TLA,
petitioner
wrote another letter dated February 13, 1987,[7]
alleging that because of the log ban imposed by the previous
administration
it had to stop its logging operations, but that when the ban was lifted
on September 21, 1984, its concession area was awarded to FLDC "as a
result
of [FLDC's] covetous maneuvers and unlawful machinations." [Petitioner
was later to say that those behind FLDC, among them being the former
President's
sister, Mrs. Fortuna Barba, were "very influential because of their
very
strong connections with the previous Marcos regime"].[8]
Petitioner prayed that it be allowed to resume logging operations.cralaw:red
In his Order
dated May 2, 1988,[9]
Secretary Fulgencio Factoran, Jr., of the DENR, declared petitioner's
TLA
No. 106 as of no more force and effect and consequently denied the
petition
for its restoration, even as he denied FLDC's motion for
reconsideration
of the cancellation of TLA No. 360. Secretary Factoran, Jr. ruled that
petitioner's petition was barred by reason of laches, because
petitioner
did not file its opposition to the issuance of a TLA to FLDC until
February
13, 1987, after FLDC had been logging under its license for almost two
years. On the other hand, FLDC's motion for reconsideration was denied,
"since the findings on which the cancellation order had been based,
notably
gross violation of the terms and conditions of its license, such as
reforestation
and selective logging activities appear to be firmly grounded."
Both petitioner
CMTC and FLDC appealed to the
Office of the President. Petitioner denied that it was guilty of
laches.
It alleged that it had sent a letter to the then Minister of Natural
Resources
Rodolfo del Rosario dated September 24, 1984 protesting the grant of a
TLA to FLDC over the area covered by its [petitioner's] TLA and, for
this
reason, requesting nullification of FLDC's TLA.cralaw:red
In a decision
dated March 21, 1991,[10]
the Office of the President, through then Executive Secretary Oscar
Orbos,
affirmed the DENR's order of May 2, 1988. Like the DENR it found
petitioner
guilty of laches, the alleged filing by petitioner of a protest on
September
24, 1984 not having been duly proven. The decision of the Office of the
President stated:[11]
As disclosed by the records, this Office,
in
a letter of June 1, 1989, had requested the DENR to issue a
certification
as to the authenticity/veracity of CMTC's aforesaid Annex "A" to enable
it to resolve this case judiciously and expeditiously. Said
letter-request
pertinently reads:
C & M Timber Corporation has
attached to
its "Supplemental Petition For Review," dated June 1, 1988, a xerox
copy
of [Annex "A"] of its letter to the Minister of Natural Resources
Rodolfo
del Rosario, dated September 24, 1984, prepared by its counsel, Atty.
Norberto
J. Quisumbing, protesting against the award of the contested area to
Filipinas
Loggers Development Corporation and requesting that it be annulled and
voided.
Considering that the aforementioned Annex
"A"
constitutes a vital defense to C & M Timber Corporation and could
be
a pivotal factor in the resolution by this Office of the instant
appeal,
may we request your good office for a certification as to the
authenticity/veracity
of said document [Annex "A"] to enable Us to resolve the case
judiciously
and expeditiously.
In reply
thereto, the DENR, thru Assistant Secretary
for Legal Affairs Romulo D. San Juan, in a letter of July 7, 1989,
informed
this Office, thus:
xxx xxx xxx
Despite diligent efforts exerted to
locate
the
alleged aforementioned Annex "A", no such document could be found or is
on file in this Office. This Office, therefore, regrets that it can not
issue the desired certification as to the authenticity/veracity of the
document.
On September 10, 1990, this Office
requested
an updated comment of the DENR on (a) the duplicate original copy of
Annex
"A"; (b) a xerox copy of Page 164, entry No. 2233, of the MNR's logbook
tending to show that the original copy of Annex "A" was received by the
MNR; and (c) a xerox copy of Page 201 of the logbook of the BFD
indicating
that the original copy of Annex "A" was received by BFD from the MNR.
On October 26, 1990, DENR Assistant
Secretary
San Juan endorsed to this Office the updated comment of Director of
Forest
Management Bureau (FMB) in a 2nd endorsement of October 25, 1990, which
pertinently reads as follows:
Please be informed that this Office is
not
the
addressee and repository of the letter dated September 24, 1984 of
Atty.
Norberto Quisumbing. This Office was just directed by then Minister
Rodolfo
del Rosario to act on the purported letter of Atty. Quisumbing and as
directed,
we prepared a memorandum to the President which was duly complied with
as shown by the entries in the logbook. Annex "A", which is the main
document
of the letter-appeal of C & M Timber Corporation is presumed
appended
to the records when it was acted upon by the BFD (now FMB) and
forwarded
to the Secretary (then Minister). Therefore this Office is not in a
position
to certify as to the authenticity of Annex "A".
Clearly,
therefore, CMTC's reliance on its Annex
"A" is misplaced, the authenticity thereof not having been duly proven
or established. Significantly, we note that in all the pleadings filed
by CMTC in the office a quo, and during the hearing conducted, nothing
is mentioned therein about its letter of September 24, 1984 [Annex
"A"].
Jurisprudence teaches that issues neither averred in the pleadings nor
raised during the trial below cannot be raised for the first time on
appeal
[City of Manila vs. Ebay, 1 SCRA 1086, 1089]; that issues of fact not
adequately
brought to the attention of the trial court need not be considered by a
reviewing court, as they cannot be raised for the first time on appeal
[Santos v. Intermediate Appellate Court, 145 SCRA 592, 595]; and that
parties,
may not, on appeal, adopt a position inconsistent with what they
sustained
below [People v. Archilla, 1 SCRA 698, 700-701].
The Office of the
President also declined to set
aside the DENR's order of July 31, 1986, cancelling FLDC's TLA No. 360,
after finding the same to be fully substantiated. Petitioner and
FLDC moved for reconsideration. In its order dated January 25, 1993,[12]
the Office of the President, through Chief Presidential Legal Counsel
Antonio
T. Carpio, denied petitioner's motion for reconsideration. It held that
"even assuming that CMTC did file regularly its letter-protest of
September
24, 1984 with MNR on September 25, 1984, CMTC failed to protect its
rights
for more than two [2] years until it opposed reinstatement of FLDC's
TLA
on February 13, 1987. Within that two [2] year period, FLDC logged the
area without any opposition from CMTC." In the same order, the Office
of
the President, however, directed the reinstatement of FLDC's TLA No.
360,
in view of the favorable report of the Bureau of Forest Development
dated
March 23, 1987. Later, the President's office reconsidered its action
after
the Secretary of Environment and Natural Resources Angel C. Alcala, on
February 15, 1993, expressed concern that reinstatement of FLDC's TLA
No.
360 "might negate efforts to enhance the conservation and protection of
our forest resources." In a new order dated February 26, 1993,[13]
the Office of the President reinstated its March 21, 1991 decision.cralaw:red
Petitioner again
moved for a reconsideration of
the decision dated March 21, 1991 and for its license to be
"revived/restored.''
Petitioner's motion was, however, denied by the Office of the President
on June 7, 1993[14]
in a resolution signed by Assistant Executive Secretary for Legal
Affairs
Renato C. Corona. The President's office ruled:
The above Order of February 26, 1993 was
predicated,
as stated therein, on a new policy consideration on forest conservation
and protection, unmistakably implied from the President's handwritten
instruction.
Accordingly, this Order shall be taken not only as an affirmation of
the
March 21, 1991 decision, but also as a FINAL disposition of the case
and
ALL matters incident thereto, like CMTC's motion for reconsideration,
dated
April 16, 1991.
Hence, this
petition.
Petitioner
contends that laches cannot be imputed
to it because it did not incur delay in asserting its rights and even
if
there was delay, the delay did not work to the prejudice of other
parties,
particularly FLDC, because the cancellation of the FLDC's TLA was
attributable
only to its own actions. Petitioner also denies that its license had
been
suspended by reason of mediocre performance in reforestation by order
of
then Minister of Natural Resources Teodoro O. Peña. It says that
it did not receive any order to this effect. Finally, petitioner claims
that the denial of its petition, because of "a new policy consideration
on forest conservation and protection, unmistakably implied from the
President's
handwritten instruction," as stated in the resolution of June 7, 1993
of
the Office of the President, would deny it the due process of law.
Petitioner
points out that there is no total log ban in the country; that Congress
has yet to make a pronouncement on the issue; that any notice to this
effect
"must be stated in good form, not implied"; and that in any case, any
new
policy consideration should be prospective in application and cannot
affect
petitioner's vested rights in its TLA No. 106.cralaw:red
We find the
petition to be without merit.cralaw:red
First. As already
stated, the DENR Order of May
2, 1988 declaring petitioner's TLA No. 106 as no longer of any force
and
effect, was based on its finding that although TLA No. 106's date of
expiry
was June 30, 1997 it had been suspended on June 3, 1983 because of
CMTC's
"mediocre performance in reforestation" and petitioner's laches in
failing
to protest the subsequent award of the same area to FLDC. There is
considerable
dispute whether there was really an order dated June 3, 1983 suspending
petitioner's TLA because of "mediocre performance" in reforestation,
just
as there is a dispute whether there indeed was a letter written on
September
24, 1984 on behalf of petitioner protesting the award of the concession
covered by its TLA No. 106 to FLDC, so as to show that petitioner did
not
sleep on its rights.cralaw:red
The alleged Order
of June 3, 1983 cannot be produced.
The Office of the Solicitor General was given until May 14, 1997 to
secure
a copy of the order but on May 7, 1997 the OSG manifested that the
order
in question could not be found in the records of this case in which the
order might be.[15]
Earlier, petitioner requested a copy of the order but the DENR, through
Regional Executive Director Antonio G. Principe, said that "based from
our records there is no file copy of said alleged order."[16]
On the other
hand, the alleged letter of September
24, 1984 written by Atty. Norberto J. Quisumbing, protesting the award
of the concession in question to FLDC cannot be found in the records of
the DENR either. The Assistant Secretary for Legal Affairs of the DENR
certified that "Despite diligent efforts exerted to locate the alleged
[letter], no such document could be found or is on file in this Office."[17]
In a later certification, however, Ofelia Castro Biron of the DENR,
claimed
that she was a receiving clerk at the Records and Documents Section of
the Ministry of Natural Resources and that on September 25, 1984 she
received
the letter of Atty. Quisumbing and placed on all copies thereof the
stamp
of the MNR. She stated that the copy in the possession of petitioner
was
a "faithful copy of the letter" in question.[18]
The difficulty of
ascertaining the existence of
the two documents is indeed a reflection on the sorry state of record
keeping
in an important office of the executive department. Yet these two
documents
are vital to the presentation of the evidence of both parties in this
case.
Fortunately, there are extant certain records from which it is possible
to determine whether these documents even existed.
With respect to the alleged order of June 3,
1983 suspending petitioner's TLA No. 106 for "mediocre performance" in
reforestation, the Court will presume that there is such an order in
accordance
with the presumption of regularity in the performance of official
functions
inasmuch as such order is cited both in the order dated May 2, 1988 of
the DENR, declaring as of no force and effect TLA No. 106, and in the
decision
dated March 21, 1991 of the Office of the President affirming the order
of the DENR. It is improbable that so responsible officials as the
Secretary
of the DENR and the Executive Secretary would cite an order that did
not
exist.cralaw:red
On the other
hand, with respect to the letter
dated September 24, 1984, there are circumstances indicating that it
existed.
In addition to the aforesaid certification of Ofelia Castro Biron that
she was the person who received the letter for the DENR, the logbook of
the Ministry of Natural Resources contains entries indicating that the
letter was received by the Bureau of Forest Development from the MNR.[19]
DENR Assistant Secretary Romulo San Juan likewise informed the Office
of
the President that the Bureau of Forest Management prepared a
memorandum
on the aforesaid letter of September 24, 1984,[20]
thereby implying that there was such a letter.cralaw:red
On the premise
that there was an order dated June
3, 1983, we find that after suspending petitioner's TLA for "mediocre
performance"
in reforestation under this order, the DENR cancelled the TLA, this
time
because of a Presidential directive imposing a log ban. The records of
G. R. No. 76538, entitled "Felipe Ysmael, Jr. & Co. v. Deputy
Executive
Secretary," the decision in which is reported in 190 SCRA 673 [1990],
contain
a copy of the memorandum of then Director Edmundo V. Cortes of the
Bureau
of Forest Development to the Regional Director of Region 2, in
Tuguegarao,
Cagayan, informing the latter that pursuant to the instruction of the
President
and the memorandum dated August 18, 1983 of then Minister Teodoro Q.
Peña,
the log ban previously declared included the concessions of the
companies
enumerated in Cortes' memorandum, in consequence of which the
concessions
in question were deemed cancelled. The memorandum of Director Cortes
stated:
TO : The Regional Director Region
2,
Tuguegarao,
Cagayan.
SUBJECT : Stopping of all logging
operations
in Nueva Vizcaya and Quirino
REMARKS :
Following Presidential Instructions
and
Memorandum
Order of Minister Teodoro Q. Peña dated 18 August 1983, and in
connection
with my previous radio message, please be informed that the coverage of
the logging ban in Quirino and Nueva Vizcaya provinces include the
following
concessions which are deemed cancelled as of the date of the previous
notice:
Felipe Ysmael Co., Inc. Industries Dev.
Corp.
Luzon Loggers, Inc. C & M Timber Corporation Buzon Industrial Dev.
Corporation Dominion Forest Resources Corp. FCA Timber
Development
Corp. Kasibu Logging Corp. RCC Timber Company Benjamin Cuaresma
You are hereby reminded to insure full
compliance
with this order to stop logging operations by all licensees above
mentioned
and submit a report on the pullout of equipment and inventory of logs
within
five days upon receipt hereof.
ACTION DESIRED : For your immediate
implementation.
EDMUNDO V. CORTES [Emphasis added]
It, thus,
appears that petitioner's license had been
cancelled way back in 1983, a year before its concession was awarded to
FLDC. It is noteworthy that petitioner admits that at the time of the
award
to FLDC in 1984 petitioner was no longer operating its concession
because
of a log ban although it claims that the suspension of operations was
only
temporary. As a result of the log ban, the TLA of petitioner, along
with
those of other loggers in the region, were cancelled and petitioner and
others were ordered to stop operations. Petitioner also admits that it
received a telegram sent on August 24, 1983 by Director Cortes of the
BFD,
directing it to "stop all logging operations to conserve our remaining
forests."[21]
It is then not true, as Atty. Quisumbing stated in protesting the award
of the concession to FLDC, that "the logging ban did not cancel
[petitioner's]
timber license agreement."
Now petitioner
did not protest the cancellation
of its TLA. Consequently, even if consideration is given to the fact
that
a year later, on September 24, 1984, its counsel protested the grant of
the concession to another party [FLDC], this failure of petitioner to
contest
first the suspension of its license on June 3, 1983 and later its
cancellation
on August 24, 1983 must be deemed fatal to its present action.
Second. Except for the letter of its counsel
to the Minister of Natural Resources, which it reiterated in its letter
to the President of the Philippines, petitioner took no legal steps to
protect its interest. After receiving no favorable response to its two
letters, petitioner could have brought the necessary action in court
for
the restoration of its license. It did not. Instead it waited until
FLDC's
concession was cancelled in 1986 by asking for the "revalidation" of
its
(petitioner's) on TLA No. 106.cralaw:red
Petitioner's
excuse before the DENR is that it
did not pursue its protest because its president, Ricardo C. Silverio,
had been told by President Marcos that the area in question had been
awarded
to the President's sister, Mrs.Fortuna Barba, and petitioner was afraid
to go against the wishes of the former President.[22]
This is a poor excuse for petitioner's inaction. In Felipe Ysmael, Jr.
& Co., Inc. v. Deputy Executive Secretary,[23]
a similar excuse was given that Ysmael & Co's license had been
cancelled
and its concession awarded to entities controlled or owned by relatives
or cronies of then President Marcos. For this reason, after the EDSA
Revolution,
Ysmael & Co. sought in 1986 the reinstatement of its timber license
agreement and the revocation of those issued to the alleged
presidential
cronies. As its request was denied by the Office of the President,
Ysmael
& Co. filed a petition for certiorari with this Court. On the basis
of the facts stated, this Court denied the petition: (1) because the
August
25, 1983 order of the Bureau of Forest Development, cancelling
petitioner's
timber license agreement had become final and executory. Although
petitioner
sent a letter dated September 19, 1983 to President Marcos seeking
reconsideration
of the 1983 order of cancellation of the BFD, the grounds stated there
were different from those later relied upon by petitioner for seeking
its
reinstatement; (2) because "the fact that petitioner failed to
seasonably
take judicial recourse to have the earlier administrative actions
[cancelling
its license and granting another one covering the same concession to
respondent]
reviewed by the court through a petition for certiorari is prejudicial
to its cause." Such special civil action of certiorari should have been
filed within a "reasonable time." And since none was filed within such
period, petitioner's action was barred by laches; and (3) because
executive
evaluation of timber licenses and their consequent cancellation in the
process of formulating policies with regard to the utilization of
timber
lands is a prerogative of the executive department and in the absence
of
evidence showing save abuse of discretion courts will not interfere
with
the exercise of that discretion.cralaw:red
This case is
governed by the decision in Felipe
Ysmael, Jr. & Co., Inc. v. Deputy Executive Secretary.
Third. It is finally contended that any "policy
consideration on forest conservation and protection" justifying the
decision
of the executive department not to reinstate petitioner's license must
be formally enunciated and cannot merely be implied from the
President's
instruction to his subordinates and that, at all events, the new policy
cannot be applied to existing licenses such as petitioner's.cralaw:red
The President's
order reconsidering the resolution
of the Presidential Legal Adviser [insofar as it reinstated the license
of FLDC] was prompted by concerns expressed by the then Secretary of
Environment
and Natural Resources that "said reinstatement [of FLDC's license] may
negate our efforts to enhance conservation and protection of our forest
resources." There was really no new policy but, as noted in Felipe
Ysmael,
Jr. & Co., Inc., a mere reiteration of a policy of conservation and
protection. The policy is contained in Art. II, Section 16 of the
Constitution
which commands the State "to protect and promote the right of the
people
to a balanced and healthful ecology in accord with the rhythm and
harmony
of nature." There is therefore no merit in petitioner's contention that
no new policy can be applied to existing licenses.cralaw:red
As to
petitioner's contention that the cancellation
of its license constitutes an impairment of the obligation of its
contract,
suffice it for us to quote what we held in Felipe Ysmael, Jr. & Co.
Inc. v. Deputy Executive Secretary:[24]
A cursory reading
of the assailed orders issued
by public respondent Minister Maceda of the MNR, which were affirmed by
the Office of the President, will disclose public policy considerations
which effectively forestall judicial interference in the case at bar.cralaw:red
Public
respondents herein, upon whose shoulders
rest the task of implementing the policy to develop and conserve the
country's
natural resources, have indicated an on-going department evaluation of
all timber license agreements entered into, and permits or licenses
issued,
under the previous dispensation.cralaw:red
The ongoing
administrative reassessment is apparently
in response to the renewed and growing global concern over the
despoliation
of forest lands and the utter disregard of their crucial role in
sustaining
a balanced ecological system. The legitimacy of such concern can hardly
be disputed, most especially in this country.cralaw:red
Thus, while the
administration grapples with the
complex and multifarious problems caused by unbridled exploitation of
these
resources, the judiciary will stand clear. More so where, as in the
present
case, the interests of a private logging company are pitted against
that
of the public at large on the pressing public policy issue of forest
conservation.
Timber licenses, permits and license agreements are the principal
instruments
by which the State regulates the utilization and disposition of forest
resources to the end that public welfare is promoted. And it can hardly
be gainsaid that they merely evidence a privilege granted by the State
to qualified entities, and do not vest in the latter a permanent or
irrevocable
right to the particular concession area and the forest products
therein.
They may be validly amended, modified, replaced or rescinded by the
Chief
Executive when national interests so require. Thus, they are not deemed
contracts within the purview of the due process of law clause [See
Sections
3(33) and 20 of Pres. Decree No. 705, as amended; Also, Tan v. Director
of Forestry, G. R. No. L-24548, October 27, 1983, 125 SCRA 302].cralaw:red
WHEREFORE, the
petition is DISMISSED.cralaw:red
SO ORDERED.cralaw:red
Regalado, Romero,
Puno and Torres, Jr., JJ.,
concur.cralaw:red
____________________________
Endnotes
[1]
Petition, Annex A; Rollo pp. 45-64.
[2]
Id., Annex B; Id., pp. 65-66.
[3]
Ibid.
[4]
Petition, Annex F; Rollo, p. 72.
[5]
Id., Annex G; Id., p. 73.
[6]
Id., Annex F; Id., p. 71.
[7]
Id., Annex H; Id., pp. 74-75.
[8]
Id., Annexes H and J; Id., pp. 74, 78.
[9]
Id., Annex V; Id., pp. 226-253.
[10]
Id., Annex HH; Id., pp. 297-306.
[11]
Id., pp. 300-302.
[12]
Petition, Annex JJ; Id, pp. 316-329.
[13]
Id., Annex LL; Id., pp. 331-332.
[14]
Id., Annex NN; Id., pp. 338-339.
[15]
Manifestation and Motion dated May 2, 1997, Temporary Rollo.
[16]
Petitioner's Memorandum, Annex A; Rollo, p. 460.
[17]
Petition, Annex AA; Id., p. 274.
[18]
Id., Annex II-1; Id., p. 315.
[19]
Id., pp. 280-284.
[20]
Id., p. 274.
[21]
Petitioner's Compliance and Manifestation dated March 24, 1997, Annex
H;
Id., p. 579.
[22]
Id., p. 257.
[23]
190 SCRA 673 [1990].
[24]
Id., at 682-684. |