Anda di halaman 1dari 11
FLORENTINO & ESMAQUEL LounoesF.oeNriNo LAW OFFICE ParemoLEsinauEL ‘Unic1706, 17 Floor, Prestige Tower Condominiom — F. Ortigas Jr. Road, Ortigas Center, Pasig Cit {IMEC MEDALLAMAGUILING ea ka City ao a oe Bee E-mail address info@felawoffice.com 01 March 2016 DEPARTMENT OF ENERGY Energy Center, Merritt Road, Fort Bonifacio, Taguig City Attn.: HON. ZENAIDA Y. MONSADA Secretary DOE - RECORDS A55) HON. MYLENE C. CAPONGCO! OIC-Undersecretary and HON. MARIO C. MARASIGAN Director Renewable Energy Management Buréa Re: Right of Way for Hydropower Project of MHCT in Majayjay, Laguna Gentlemen/Mesdames: This refers to your letter of February 11, 2016 to our client, Mr. Ricardo Breganza of Majayjay, Laguna (Majayiay for short), regarding the acquisition of right of way (ROW) over the parcel of land (Lot No. 3873) of our client situated in Brgy. Banga, Majayjay and covered by Real Estate Tax No. 16-0010-00363 for the establishment of the Hydropower Project (PROJECT) of a private company known as Majayjay Hydropower Company, Inc. (MHCT). In your letter of February 11, 2016, your agency has offered to pay to our client the sum of P579,400.00 for the ROW with threat that you will institute expropriation proceedings without further notice if our client will not accept your offer. It is unlawful for you to make such offer of payment for said ROW to our client because the PROJECT is not an infrastructure project of the government but a private business of a private company. In fact, in your letter of February 11, 2016, you have never expressly mentioned therein that the PROJECT is an infrastructure project of the government, Stated otherwise, you cannot and should not use public funds to advance the business interest of a private company as the same is a clear commission of the offense of malversation of public funds which is punishable act under Article 217 of the Revised Penal Code of the Philippines. Moreover, in offering to pay for said ROW using public funds in order to advance the interest of a private company and/or for knowingly and deliberately allowing your agency to be used as convenient tool to force our client to give said ROW for the PROJECT, you are obviously giving a private company (MHCI) unwarranted benefits, advantage or preference in the discharge of your official and administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence which is a punishable act under Section 3 (e) of the Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. In our letter of November 23, 2015 to MHCI, copy of which was duly furnished to you by personal service on November 24, 2015, wherein we manifested that our client shall not and will not give any ROW to MHCI for the PROJECT, we have succinctly explained why the PROJECT is not an infrastructure project of the government and thus it is not proper for you to threaten our client that you will expropriate his subject parcel of land, to quote: “This refers to your letter of November 4, 2015 to our client, Mr. Ricardo Breganza, regarding acquisition of right of way for the Hydropower Project (PROJECT for short) of your company in Majayjay, Laguna (Majayjay) where you have claimed and represented that the PROJECT is an infrastructure project of the Republic of the Philippines. It is a blatant lie amounting to fraud for you to claim and represent that the PROJECT is an infrastructure project of the Republic of the Philippine or by our National Government, It appears that in claiming that the PROJECT is an infrastructure project of the Republic of the Philippines, you have no other evident intention but to give a false impression that a land owner like our client is under compulsion to give a right of way for your PROJECT and to enable you to get right of way at the least possible cost. You ought to know that after the passage of the Republic Act No. 9136, otherwise known as the EPIRA Law, our government had ceased and stopped from engaging in power generation like the PROJECT, operation of transmission lines and power distribution. In fact, after the enactment of the EPIRA Law, our government has privatized and sold all the power plants of NAPOCOR. On the other hand, the operation of transmission lines all over the Philippines has been transferred by TRANSCO to a private corporation, National Grid Corporation of the Philippines (NGCP). Thus, it is indeed a complete lie amounting to fraud for you to claim and represent that your PROJECT involving power generation is an infrastructure project of the government. You should stop from making this false and fraudulent representation that the PROJECT is an infrastructure project of the government. The PROJECT is a private undertaking/business of your company. Our National Government has nothing to do with the establishment and operation of the PROJECT. Granting for the sake of argument, without in way conceding, that the PROJECT is an infrastructure project of the government, still the amount of right of way compensation that you are offering for the right of way is unfair, unreasonable and unjust because the tight of way compensation for infrastructure project of the government is not and cannot be based alone from the assessment/appraisal made by Provincial Assessor of Laguna, Assessment by private bank and/or Zonal Valuation by the Bureau of Internal Revenue (BIR). The just and reasonable compensation for right of way compensation should be based upon the future earnings of the land involved and/or consequential losses of the land owner due to the use of the land after considering its present fair market value of the land and/or its zonal value of the BIR, whichever is higher. In other words, you must compensate the land owner for right of way on the basis of the present fair market value of the land and/or its zonal value plus the future earnings of the land and/or consequential losses of the land owner reckoned from the date of its occupation and use up to the expiration of the period of occupation and use of the land. In any event, the land of our client cannot be taken for public use without appropriate expropriation proceedings as our client shall and will never agree to a negotiated right of way contract. Your company is not an instrumentality or agency of the government and thus, you have no right and authority at all to institute any expropriation proceedings against our client. A private company like your company cannot institute an expropriation proceedings unless you have been delegated the authority to expropriate by the legislature. The Department of Energy (DOE) cannot delegate to you any authority to expropriate. It is only the Philippine Congress which has the power to delegate the authority to expropriate. Thus, it does not matter that according to you that you have been appointed as attorney-in- fact of DOE.” A copy of our letter dated November 23, 2015 to MHCI showing that you have duly received the same on November 24, 2015 is hereto attached for your ready reference. In view thereof, our client shall not and will not accept your offer of payment for said ROW because such offer of payment constitutes a plain and simple malversation of public funds and violation of Section 3(e) of the Anti-Graft and Corrupt Practices Act, Our client docs not want to be a party to the commission of such offenses, If you will continue to give to a private company (MHCI) unwarranted benefits, advantage and preference in the discharge of your official and administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence and/or if you will use public funds for the acquisition of said ROW, we shall and will certainly file against you in conspiracy with the responsible officers of MHCI the necessary criminal actions for malversation of public funds and violation of Section 3 (¢) of the Anti-Graft and Corrupt Practices Act. Accordingly, formal demand is hereby set upon you to refrain and desist from threatening our client that you will expropriate his subject parcel of land in the event of failure to accept your offer of such payment and/or for giving a private company (MHCI) unwarranted benefits, advantage and preference in the discharge of your official and administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence by knowingly and deliberately allowing your agency to be used as a convenient tool for the acquisition of ROW for the PROJECT under the threat that you will expropriate our client’s subject parcel of land, Finally, we hereby furnish copy of this letter to the Hon. Ombudsman Conchita Carpio-Morales to formally inform her in advance that you intend to use public funds for the acquisition of ROW involving private business/project and/or for giving a private company (MHC) unwarranted benefits, advantage and preference in the discharge of your official and administrative functions through manifest partiality, evident bad faith or gross inexcusable negligence by knowingly and deliberately allowing your agency to be used as a convenient tool for the acquisition of ROW for the PROJECT under the threat that you will expropriate our client’s subject parcel of land. Please do not force us to take such drastic legal actions against you, Very truly yours, 'TERNO L, ESMAQUEL LLOYD M. LEQUIN Copy furnished: HON. CONCHITA CARPIO MORALES OMBUDSMAN c/o Public Assistance Bureau Ground Floor, Ombudsman Bldg., Agham Road, Diliman, Quezon City MR. ARMANDO L, DIAZ President & CEO RD Lor 265 2b Be Majayjay Hydropower Company Inc. 3F GHECC Building, 169 Chico Street (Xavierville Avenue), Quitino 2C, Quezon City KGG. VICTORINO C.RODILLAS PD 02 265793 32 Municipal Mayor Majayjay, Laguna KGG. MEMBERS OF THE SANGGUNIANG BAYAN NG MAJAYJAY clo KGG. Valeriano O. Vito, Jr. Vice Mayor pp 62 5 ~2E Majayjay, Laguna QNEZON CIty HALL post OFHCE ORO CN? HEMO HAADLUL TAH 2, 2OlYe FLORENTINO & ESMAQUEL LOURDES F.FLoRaMO ase at LAW OFFICE Meum c. MeDALLAMAQULING tlovnuieaun Unit 1706, 17" Floor, Prestige Tower Condominiun F. Ontigas J. Road, Ortigas Center, Pasig City NOEL PATRICK ¥ MERCADO “Tel. Nos: 6530237 to 38/ 683-0240 oa aie Fax No. 638-1492 ‘MARTINANO A, BaNacOY E-mail address fnfo@felawofice.com ‘Spock Couns {elay30076 yahoo.com oRBERTO BRU 12 Special Ligation Cunel 23 November 2015 MAJAYJAY HYDROPOWER Rese THY SSOeET COMPANY INC., (MHCI) ¥ 4634 3F GHECC Building, 8 3 169 Chico Street (Xavierville Avenue), stot 20 Quirino 2C, Quezon City vrconiQl Ddaghl cotorenke incase ot radiy and mrteinE™ ev P. Zamora St. Brgy. San Miguel, Majayjay, Laguna Attn: MR. ARMANDO L. DIAZ President & CEO Re : Right Of Way For Hydropower Project Of MHCI In Majayjay, Laguna Gentlemen/Mesdames: This refers to your letter of November 4, 2015 to out client, Mr. Ricardo Breganza, regarding acquisition of right of way for the Hydropower Project (PROJECT for short) of your company in Majayjay, Laguna (Majayjay) where you have claimed and represented that the PROJECT is an infrastructure project of the Republic of the Philippines. It is a blatant lie amounting to fraud for you to claim and represent that the PROJECT is an infrastructure project of the Republic of the Philippine or by our National Government. It appears that in claiming that the PROJECT is an infrastructure project of the Republic of the Philippines, you have no other evident intention but to give a false impression that a land owner like our client is under compulsion to give a right of way for your PROJECT and to enable you to get right of way at the least possible cost..You ought to know that afier the passage of the Republic Act No. 9136, otherwise known as the EPIRA Law, our government had ceased and stopped from engaging in power generation like the PROJECT, operation of transmission lines and power distribution. In fact, after the enactment of the EPIRA Law, our government has privatized and sold all the power plants of NAPOCOR. On the other hand, the operation of transmission lines all over the Philippines has been transferred by TRANSCO to a private corporation, National Grid Corporation of the Philippines (NGCP). Thus, it is indeed a complete lie amounting to fraud for you to claim and represent that your PROJECT involving power generation is an infrastructure project of the government. ‘You should stop from making this false and fraudulent representation that the PROJECT is an infrastructure project of the government. The PROJECT is a private undertaking/business of your company. Our National Government has nothing to do with the establishment and operation of the PROJECT. Granting for the sake of argument, without in way conceding, that the PROJECT is an infrastructure project of the government, still the amount of right of way compensation that you are offering for the right of way is unfair, unreasonable and unjust because the right of way compensation for infrastructure project of the government is not and cannot be based. alone from the assessment/appraisal made by Provincial Assessor of Laguna, Assessment by private bank and/or Zonal Valuation by the Bureau of Intemal Revenue (BIR). The just and reasonable compensation for right of way compensation should be based upon the future earnings of the land involved and/or consequential losses of the land owner due to the use of the land after considering its present fair market value of the land and/or its zonal value of the BIR, whichever is higher. In other words, you must compensate the land owner for right of way on the basis of the present fair market value of the land and/or its zonal value plus the future earnings of the land and/or consequential losses of the land owner reckoned from the date of its occupation and use up to the expiration of the period of occupation and use of the land. In any event, the land of our client cannot be taken for public use without appropriate expropriation proceedings as our client shall and will never agree to a negotiated right of way contract, Your company is not an instrumentality or agency of the government and thus, you have no right and authority at all to institute any expropriation proceedings against our client. A private company like your company cannot institute an expropriation proceedings unless you have been delegated the authority to expropriate by the legislature. The Department of Energy (DOE) cannot delegate to you any authority to expropriate. It is only the Philippine Congress which has the power to delegate the authority to expropriate. Thus, it does not matter that according to you that you have been appointed as attorney-in-fact of DOE. In the light of the foregoing, formal notice and demand is hereby set upon you that our client shall not and will not give any right of way for your PROJECT especially that you have made a false and fraudulent representation that your PROJECT is an infrastructure project of the Republic of the Philippines. You and your officers/personnel are hereby strictly prohibited from entering into the subject parcel of land of our client. Failing in this, we shall and will hold criminally liable the responsible officers/personnel of your company. Of course, this is without prejudice to the right of our client to cause for the cancellation of your Service Contract over the PROJECT with DOE if you will violate his property right. Any violation of the property right of a land owner is a good legal ground for the cancellation of your Service Contract with the DOE. ‘We trust that we have made clear our client’s stand on the matter. Very truly yours, Lpehe (Y 'ERNO L. ESMAQUEL CONFORME: wh f “TEREGANZA JENT Copy furnished: DOE - RECORDS | (AXal HON. ZENAIDA Y. MONSADA Secretary Department of Energy Energy Center, Rizal Drive, Bonifacio Global City, 1632 Taguig City, Philippines HON. MARIO C, MARASIGAN Director Renewable Energy Management Bureau Department of Energy Energy Center, Rizal Drive, Bonifacio Global City, 1632 Taguig City, Philippines MR. OSCAR S. REYES Nets marscom President & CEO Manila Electric Company (Meralco) Ortigas Avenue, Meralco Center, Pasig City KGG. VICTORINO C. RODILLAS Municipal Mayor Majayjay, Laguna KGG. MEMBERS OF THE SANGGUNIANG BAYAN c/o KGG. Valeriano O. Vito, Jr. Vice Mayor Majayjay, Laguna fn "Bozeaea0. Seriat No, {Beretunoaees 85 Sirielal Rogeipt Ne Gustoner s Gory HIS, SERVES AS AN OFFICIAL, RECELPT Far permit to eas Praeioeceones3t (Wm 126223172423 eietrar HYDROPOWER, COMPANY TNC. (MECH. WPoveh REPLI wasn Pi zee ST TeMoery date Were lal : Ege BRB Bits Tran. Type DELIVERY. eae ae isn PA ao ea FLORENTINO AND, ESHAGUEL LAW OFFICE PReeiD ave Oetiens COVER WOME egg ANO JR. 0 koe ee 0. (VICE MaYoR) Couric [MEMBERS OF THE SANGGUNIANG avaN ) Sourier N-Pouch Regular bei Bali Creo pelivery Bate S00TH Luzon ies Oe ee ee FLORENTINO nO AND, Tah GHORENTING AND“ ESHAGUEL LAW OFFI ae Bree Gud UAW OFFICE £1 Zero taten Benth Oe Foren fleet Eres salva Ta ee an Gerd nee agunt due et a ents: DOCUMENTS s satpree RNAS THET THE sotPRENT sree a Tr 126223 stoners SOY PRESS. i rts SECA atid EP RODILL Courier N-Pouch Regular. F RODILLAS, VICTORINO C. (navor) Cour et ean cn HICIPALITY OF WAIAYIRY Tees ane | Hidsraa ian oe Sater : rege cota 7.00;00 PR $eurH Luzon eee ines FRORENTINO’ END, ESRAGUEL LAW OFFICE ar trae. srTyrrLoge Yiesrtte, rower coo ErenLD ave oeTacrs caret pele ci fount Due: 108. eres mann fese ae eed hameer Contents: DOCUMENTS ape unmeers THAT THE SHTOMENT WS HO ek mst ustner Caro: 565-88

Anda mungkin juga menyukai