FLORENTINO & ESMAQUEL
LounoesF.oeNriNo LAW OFFICE
ParemoLEsinauEL ‘Unic1706, 17 Floor, Prestige Tower Condominiom
— F. Ortigas Jr. Road, Ortigas Center, Pasig Cit
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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 infrastructureproject 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 CityMR. 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
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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 possiblecost..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 aninstrumentality 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
JENTCopy 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, Lagunafn "Bozeaea0.
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