State of Israel Emblem
THE LAW COURTS
The District Court in Beersheba
Civil Case File Nos. 7161/06, 7275/06, 7276/06
1114/07, 1115/07, 5278/08
Before Her Honor Judge Sarah Dovrat - The Vice-President
The Plaintiffs
1.
Suleiman Mahmud Salaam El-Uqbi deceased
2.
Gideon Odeh Abu Sabit
3.
Sa'id Ali El-Uqbi
4.
El-Uqbi Magid Ali Suleiman
5.
Maher Ali El-Uqbi
6.
Fatima Elanbari El-Uqbi
7.
Noel Elassam El-Uqbi
8.
Dallal El-Uqbi
9.
Tamam E-Uqbi
10.
Raji El-Uqbi
11.
Hassan (Nuri) Suleiman El-Uqbi
12.
Anur Suleiman El-Uqbi
13.
Ibrahim Suleiman El-Uqbi
14.
Sa'id Suleiman El-Uqbi
15.
Halil Suleiman El-Uqbi
16.
Rahab Suleiman El-Uqbi
17.
Halama Suleiman El-Uqbi
Represented by their Attorneys Advocate Michael Sfard
and Advocate Radwan Abu Arara
Versus
The Defendant
The State of Israel
By the State Attorney's Office represented by Advocate
Yaari Roash and Advocate Nira Gilad
JUDGMENT
2
1.
Conflicting claims that were brought under Section 43 of the Land (Settlement of Title)
Ordinance [New Version] 5729-1969 (hereinafter: "The Ordinance") are the subject of the
dispute before me. One claim was brought on behalf of the late Suleiman Mahmud Salem
El-Uqbi (hereinafter: "The Deceased") by the Plaintiffs which are his heirs - his children
and grandchildren, and against a claim of the State and the Development Authority.
The land that is the subject of the dispute consists of the following: Block 400367 Parcel No.
1, known as "Araqib 2" (Civil Case File No. 7161/06); Block 400371 Parcel No. 1, known as
"Araqib 6"(Civil Case File No. 7275/06); Block 400369 Parcel No. 1, known as "Araqib 60"
(Civil Case File No. 7276/06); Block 400526 Parcel No. 1, known as "Sharia 133" (Civil
Case File No. 1114/07) and Block 400527 Parcel No. 1, known as "Sharia 134"(Civil Case
File No. 1115/07) "(hereinafter : "The Land" or "The Plots").
In another Case, File No. 5278/08, which relates to Sharia 132, the parties agreed that closing
arguments would be submitted in consolidation with Case File No. 7161/06, with the
judgment to be pronounced on the basis of the evidence submitted in that case, which relates
to a specific agreement for the purchase of the Land, and the remaining evidence submitted
in Case File No. 7161/06. It was also agreed that Sharia 132 which is in the vicinity of
Zahliqa, will accordingly be treated in the same way as the Plots indicated in Zahliqa as 133
and 134 (hereinafter: "The Land").
The Plaintiffs' Submissions
2.
The Land that is the subject of the dispute is classified as "Miri" Land because they were"
settled and cultivated from time immemorial by those resident on it and allocated in a
traditional manner" (Section 5 of the closing arguments), and had been owned by the
families of the Plaintiffs for hundreds of years either by way of inheritance or purchase. The
Plaintiffs and their families had lived on the Land and had cultivated it throughout that
period, paying taxes to the alternating authorities and acting as the owners of the Land until
they were forcibly ejected by the Military Government in 1951, this without having received
notification of expropriation of the Land. The attempts of members of the Plaintiffs' family to
return to the Land after six months had elapsed since the date of their departure and over the
years since then, were met with a refusal on the part of the authorities. The Settlement Claims
submitted in 1973, were not dealt with over the years and only came before the Court in
2006, and 2007.
The claim that this is a case of "Mewat" Land was first raised in the context of the State's
claims to the Settlement Officer. The State has not proven that the Land is "Mewat", even
though the burden of proof lies with the State. The burden is all the more severe owing to bad
faith on the part of the State which had not brought the conflicting claims before the Court
for determination for 33 years and which prejudiced the Plaintiffs' case by evidentiary
damageby the way it has conducted itself, because the elders of the tribe, who could have
testified as to the situation regarding the plots in the 19th Century, have passed away.
3.
Until the beginning of the 20th Century, Ottoman Law did not apply to the Land, and the
Ottoman Authorities and their successors the British who ruled the country, gave the Bedouin
legal autonomy, to determine rights of title to the Land in accordance with Bedouin Law.
There are no evidence as to the application of Ottoman Law in the Negev until the 20th
Century or the application of the British Land Mewat Ordinance in the Negev, until the
application of Israeli Law, thus the Plaintiffs' argument that the valid Law applicable in
relation to matters concerning Land is the traditional Bedouin Law should be accepted, or
alternatively, the classification of the Land should be distinguished according to Ottoman
Law as per their status in the 20th Century and not previously, in other words according to the
Land (Mewat) Ordinance of 1921 (hereinafter: "The Land Ordinance").
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It was alternately argued that the status of the Plots in 1858 does not indicate to the Land
being "Mewat" but rather "Miri" because there was a nearby settlement in existence, as well
as specific cultivation of the Plots. Not only has the State not proven otherwise, but on the
contrary, the purchase of lands by Jews from Bedouin confirms the title of the Bedouin, and
registration of the purchases in the Tabu (Land Register) maintained by the British
Mandatory Authorities points to Bedouin ownership of the Land.
4.
The documents submitted by the Plaintiffs are an indication as to rights of title, as is the
expert opinion of Professor Yiftachel, which clearly points to settlement and cultivation of
the Bedouin areas in the Negev in the "El Araqib" region, as can also be ascertained from the
expert opinion of Shlomo Ben Yosef, the aerial photographs interpreter, showing that the
Plots that are the subject of the claim were being cultivated in 1945.
5.
The claim of the State, to the effect that the Land was expropriated pursuant to the Land
Acquisition (Validation of Acts and Compensation) Law, 5713-1953 (hereinafter: "The
Land Acquisition Law"), should be rejected. The Expropriation Order was issued on an
erroneous basis of the Land having been Mewat. When it became evident that this
assumption was incorrect the Order was revoked because of the Land not being "Mewat" and
it not being possible to treat the Land as property not belonging to anyone, as it belongs to
the Plaintiffs. Additionally, the expropriation was not actually carried out because Section 2
of the Law was not complied with, specifically regarding the issue of a certificate signed by
the Minister, which testifies to the necessity of expropriation and according to which the
Plaintiffs were not in possession of the Land on April 1, 1952 and that between May 14, 1948
and April 1, 1952 the Land was used or assigned for purposes of essential development,
settlement or security and that the Land is still required for these purposes. The argument that
the Plaintiffs were not in possession of the Land on the aforementioned date is an argument
made in bad faith because the Plaintiffs were evicted from the Land under a false pretext.
Furthermore the Land was not used for the purposes of essential development, settlement or
security. Moreover, the Respondent leased the Land for cultivation for short periods of time,
to other Bedouin in the area.
Expropriation of the Land was based on a future justification which did not come to fruition
and therefore, under the rule set in HCJ 2390/96 Yehudit Karsik v. State of Israel, Israel
Supreme Court Judgments 55(2) 662 the expropriation became void and the Land must be
restored to the Plaintiffs.
6.
As for Sharia 132 (Civil Case File No. 5278/08) - the dispute is confined to the question of
whether the plot was acquired by the Plaintiffs' father from his grandfather, and the questions
of the land constituting the Plot and its location in the area. In light of the original purchase
agreement with a map attached (Exhibits P/1-P/3) and the testimony given by Hassan (Nuri)
Suleiman El-Uqbi, which was neither contradicted nor repudiated, it must be determined that
the Plaintiffs have proved acquisition of the Plot by their forefathers.
The Respondent's Position
7.
The Land, on the eve of the acquisition, was "Mewat" owned by the State. The 1858
Ottoman Land Code (hereinafter: "The Ottoman Code") and the decided Case Law
prescribed two aggregate conditions for the definition of Mewat Land; distance of the Land
from a settled locality and it being situated in a desolate location, without having previously
4
been allocated to anyone, and without having been occupied by anyone - two conditions that
have been satisfied in this case. The Plaintiffs have neither argued nor proved "revival of
Mewat" and neither have they proven that the Land is "Miri" Land, in respect of which the
conditions for purchase of title have been satisfied. An argument as to cultivating the Land is
not relevant in the case of Mewat Land. Furthermore, the Land was not identified as required
and it was not proven that the documents on which the Plaintiffs rely do indeed relate to the
Plots that are the subject of the dispute, since they are unclear and there is no connection
between the size of the Plots and their borders as described in the Memoranda of Claim.
The agreements on which the Plaintiffs rely are invalid vis a vis the State. The source of the
rights claimed by the Plaintiffs is flawed, and we are dealing with a chain of rights which is
based on a transfer that is not valid vis a vis the Authority. One cannot argue that the
agreements were "duly" drawn up, when according to the Law as practiced at that time, the
condition for validity of a transaction in the Land was its registration in Tabu (the 1858 Tabu
Law, the 1920 Land Transfer Ordinance).
The Plaintiffs' arguments as to the inapplicability of the Ottoman Law and the application of
Bedouin custom cannot be accepted. Had the sovereign power wished to exempt one section
of the population or another from subordination to that Law, it would have been necessary to
do this explicitly. In addition, in some of the documents submitted by the Plaintiffs (P/13,
P/2) it appears that they also believed that an obligation existed as to registration in Tabu, and
such obligation was expressly mentioned in the agreements made between them. This fact is
not consistent with the argument that a different set of autonomous customs applies to them
that is distinct from the general law. In regards to the burden of proof - this is not a case of
equal burdens as the State is not an ordinary litigant, but rather that the legislator has viewed
the State as having title to the Land unless proved otherwise.
8.
The Plaintiffs' contention as to prejudice caused by evidentiary damage is unfounded and in
so far as such damage has been caused, it must be treated as a result of their own negligence,
as it was entirely up to them, prior to a declaration as to settlement of land in the Negev, to
seek registration of the Land in the transitional periods, but the Plaintiffs were idle and did
nothing until 2005. Additionally, the Plaintiffs did not submit their evidence and a list of their
witnesses in the framework of the Memoranda of Claim or subsequently, and consequently
the death of the witnesses is not a ground for acceptance of their arguments where one is
dealing with Land in the Mewat category, which cannot be acquired and the title to it may not
be obtained merely by occupation and cultivation. The historical and factual arguments of the
Plaintiffs were contradicted in the expert opinion of Professor Kark, which the Plaintiffs'
expert did not succeed in disproving.
9.
Section 2 of the Acquisition Law provides that the acquired property shall belong to the
Development Authority, passing to its possession, free from any lien. The Land is part of an
extensive acquisition carried out pursuant to the Law in 1954 and was registered in the name
of the Development Authority in the Land Registration Office. The certificate issued
pursuant to Section 2 of the Acquisition Law and the determinations made in it are
conclusive, and it is of no importance as to what was the assumption of the Authority as
regards the type of Land when the certificate was issued. Residential localities and
cooperative settlements, an industrial zone, agricultural areas etc., were established within the
confines of the Land. Therefore the expropriation was implemented far beyond the standards
set in the decided cases.
10.
In Civil Case File No. 5278/08, the Land known as Sharia 132, is State Land by virtue of it
being "Mewat", which was not allocated to the Plaintiffs or to others nor registered in their
names. Sharia 132 is adjacent to Sharia 133 and 134, to which Professor Kark refers in her
expert opinion, which also examines the status of the Lands adjacent to them; therefore in
5
this case its findings apply, which confirm the definition of the Land as "Mewat". The
Plaintiffs have not proven, to the requisite degree, a root of title in relation to this Plot, as
they have not proved that the transferors of the alleged rights, Mahmud and his son Ibrahim,
had any rights at all. Consequently there is no value to the sale agreement P/1 without it
having been proven that the sellers had title to the Land, and the agreement does not form a
basis, to the degree necessary, of a connection to the Plot. Additionally, the Land was not
registered in Tabu despite the sale agreement imposing an obligation to that effect on the
parties to the agreement.
Discussion
Expropriation of the Land Pursuant to the Land Acquisition (Validation of Acts and
Compensation) Law 5713-1953
11.
This case is not the first of its kind in question in the context of Land Settlement, but has
become endlessly entangled in many irrelevant arguments, while petitioning to change or
depart from the previous court decisions, such as those set out in C.A. 518/61 Salah Badran
and Others v. State of Israel and the Cross-Appeal, Israel Supreme Court Judgments 15(3)
1717 (hereinafter: "The Badran Judgment") as well as C.A. 218/74 Salim Ali Agadia ElHawashleh and Others v. State of Israel, Israel Supreme Court Judgments 38(3) at page 141
(hereinafter: "El-Hawashleh Judgment") - this in light of the Basic Law: Human Dignity
and Liberty, and the interpretation of the Basic Laws and owing to the fact that the decided
cases "...which originate in a legal error - the error pertains both to the relevant time
and to the question of the nature of 'a populated locality' ...the error occurred owing to
two aggregate reasons: failure to see the overall picture of the Land Laws under the
Mandatory Legal System which Israel inherited, and owing to the interpretation given
to the Land (Mewat) Ordinance 1921, which was not compatible with the important
interpretative changes necessarily attendant on assimilation of the old Law... the need
for an interpretative change attendant on Laws that infringe property rights and
human dignity which became more pronounced after the constitutional revolution, and
which points per se to a change in the decided case law that preceded the New Basic
Laws" (Section 6 of the Plaintiffs' Closing Arguments).
The Land was expropriated back in 1954 under the provisions of the Acquisition Law.
Section 2 of the Law provides that in respect of a property acquired under the Law: "The
property shall belong to the Development Authority and be regarded as free from any
lien and the Development Authority may forthwith take possession thereof." The
Plaintiffs acknowledge that contesting the legal validity of the Expropriation Order does not
fall within the jurisdiction of this Court, and that they should apply to the High Court of
Justice; accordingly they add that revocation of the Expropriation Order is necessary as an
attached matter and in so far as it is determined that this Court lacks jurisdiction, they would
act accordingly. The Plaintiffs are claiming that there were flaws in the Expropriation Order
and two principal flaws justify its revocation; one is that the expropriation was made on the
erroneous assumption that the Land was Mewat Land and consequently "...it becomes clear
that the Order, as an administrative decision, rests on an erroneous and unfounded
factual basis", because the question of from whom the Land was expropriated is critical and
a survey carried out by the Development Authority indicates that the Land was cultivated
prior to its expropriation and that this description had been deleted from the Memorandum of
Claim (Section 110 of the Closing Arguments).
The Case Law has already considered the meaning of the Acquisition Law in terms of the
period in which it was enacted and the arrangement set out in it. Thus, in C.A. 3535/04
6
Bracha Diner v. State of Israel (not published; hereinafter: "the Diner Judgment") the
President of the Supreme Court, Her Honor Judge D. Beinish reviewed the subject in a most
comprehensive manner and found as follows: "The Acquisition Law is a statute that must
be viewed against the background of the period in which it was enacted during the early
years of the State. There is no doubt that it is a Law with special characteristics and
distinct from other expropriation laws. The Law involves and is interlaced with all the
essence of those early days of the State in which land was seized without a statutory
basis for doing so, and the Minister of Finance was entitled retroactively under the Law
to determine that the Land was required for "purposes of essential development,
settlement or security" even in the absence of a statutory basis for this. In accordance
with its draconian nature, the Law can be viewed as having been enacted at that time as
quasi-emergency legislation, with the powers granted by it having been restricted to a
period of one year only. The Law granted retroactive validity to the seizure of lands by
the State Authorities in the period between the establishment of the State and April 1,
1952. ...Section 2(a) of the Acquisition Law provides that a property consisting of
expropriated land shall be bestowed to the Development Authority by virtue of a
certificate signed by the Minister in which the Minister testifies to three conditions
having been satisfied in relation to the property: (1) That on April 1, 1952 the property
was not in the possession of its owners; (2) the property was used or assigned for the
purposes of essential development, settlement or security within the period between
May 14, 1948 and April 1, 1952; (3) the property is still required for one of these
purposes. As to the evidential weight of the certificate issued by the Minister, the
decided cases state that the certificate constitutes "conclusive evidence" with regard to
the facts detailed in it, and there is no practical possibility of contesting its legality (see:
HCJ 5/54 Younis v. The Minister of Finance, Israel Supreme Court Judgments 8 314,
317; C.A. 816/81 Gera v. The Development Authority, Israel Supreme Court Judgments
39(1) 542, 547; C.A. 2275/92, Bashar v. The Development Authority (not published)). It
should be noted that even case law which takes a slightly more reserved position in
respect of the possibility of contesting the legality of the expropriation, held that even if
we were now to leave open a possibility of examining the legality of the certificate, this
opening would be quite narrow (see: HCJ 84/83 El Wachili v. State of Israel, Israel
Supreme Court Judgments 37(4) 173, 179-180; C.A. 517/85 the Commissioner of the
Waqf of the Maronite Church v. The Development Authority, Israel Supreme Court
Judgments 42(1) 696, 701-702). Section 2(b) of the Acquisition Law provides that the
above-mentioned certificate may only be issued within one year of the coming into force
of the law, namely commencing from March 20, 1953 and that the certificate shall be
published in the Official State Publication (Reshumot) as early as possible after the date
of its issue ... The arrangement prescribed in the Acquisition Law for the expropriation
of the land in favor of the Development Authority is intended to achieve a dual purpose:
on the one hand, it is designed to grant retroactive legal validity to the seizure of land
by the State for the purposes of development, settlement and security in relation to land
abandoned by its owners in the period following the establishment of the State, and on
the other hand it is designed to provide a compensation mechanism for the landowners
whose lands were expropriated ... The harsh nature of the provisions of the Acquisition
Law and the non-use of the expropriation of land arrangements prescribed in the Land
Ordinance, can only be understood from the aspect of the special historical
circumstances of the early days of the State; against the background of the needs of the
time and when lands were abandoned by their owners as a result of the events of the
war. These historical circumstances led to the enactment of the Acquisition Law, whose
provisions constitute a substantial infringement of the right of title to property, and
there is no doubt that legislation of this type would not currently stand the test of
constitutionality; the enactment of the Basic Law: Human Dignity and Liberty, in 1992,
7
expresses changes in the social priorities, including the placement of much greater
emphasis on the basic rights of the individual as opposed to the interests of the State ..."
(Sections 6-7 of the Judgment).
Judge Danziger also made reference to the effect of the Basic Law: Human Dignity and
Liberty, in C.A. 4067/07 Mahmud Halil Elfatah Jubarin v. the State of Israel (hereinafter:
"Jubarin Judgment").
"35. The Basic Law: Human Dignity and Liberty does indeed have an interpretative
effect on the various expropriation laws, and this is discernible in the rulings of this
Court. Nevertheless, as has been stated above, The Land Acquisition Law is of an
exceptional nature, and should be construed in the main against the background of the
period in which it was enacted, which was the only period in which in actual fact action
under it was possible (because the validity of the Law was restricted to one year only
and at the end of a year from the date on which the Law came into force, it was no
longer possible to expropriate land pursuant to it). It can be said that the Land
Acquisition Law is a law that has "stagnated" and consequently, I am of the view that
the effect of the Basic Law: Human Dignity and Liberty on it, in so far as there is any
effect, is minimal. Indeed, by virtue of the special nature of the Land Acquisition Law,
it was held by this Court that there is apparently no cause for the application of the
Karsik Rule in relation to cancellation of expropriation in light of a change in the object
of the expropriation - in respect of expropriations under the Acquisition Law (see the
Sabit case; the Diner case).
Following the Diner judgment, there is no ground for a re-examination of interpretation of
the Badran and Elhawashleh judgments, in light of the Basic Law: Human Dignity and
Liberty and the infringement of the right of title to property, as this subject has already been
considered and examined extensively from the same aspects as are being argued by the
Plaintiffs. The Diner judgment was pronounced after the enactment of the Basic Law: Human
Dignity and Liberty and left the ruling in the Elhawashleh and Badran cases unchanged, with
an express reference to the Basic Laws and with a clear statement that the validity of the
Acquisition Law and its implementation must be examined in light of the needs of the period
in which it was enacted. It should also be borne in mind that this was a law that was valid for
one year only and therefore the interpretation is in light of the needs of that period and should
not be viewed in light of the changes that have occurred in the State, in its laws and the
change in the prevailing atmosphere over the years. Any criticism that is expressed today
with regard to the Acquisition Law, is not relevant as the Acquisition Law remains as a fait
accompli and represents a period in which such expropriations had legal legitimacy.
12.
The land was expropriated on the basis of the Acquisition Law, and two Expropriation
Certificates were issued under Section 2 of the Acquisition Law, they were published in the
Official State Publication (Yalkut Hapirsumim) Number 355 dated June 13, 1954
(Appendices 5A1 and 5D1 of the Defendant's exhibits). The Expropriation Certificates
complies with the three aggregate conditions: 1. The property was not in the possession of its
owners on April 1, 1952; 2. The property was used or assigned for the purposes of essential
development, settlement or security and within the period between May 14, 1948 and April 1,
1952; 3. The property is still required for one of the aforementioned purposes.
The Plaintiffs are contesting the expropriation as being a matter that routinely occurs, despite
the passing of years and the considerable delay with which their argument is tainted, and they
argue that the aforementioned three conditions were not satisfied in view of the basic
information that was lacking prior to the signing of the Order - because they had been in
8
possession of the land and cultivating it during the relevant period. Alternatively, they argue
that even the public purpose for which the land was assigned was not accomplished and
accordingly the land must be returned to its owners, as held in HCJ 2390/96 Yehudit Karsik
v. State of Israel, Israel Supreme Court Judgments 55(2) 662 (hereinafter: "the Karsik
judgment"), because the plots that were expropriated had been left in a desolate state, had
not been cultivated and nothing had been built on them. The State had expropriated cultivated
and settled plots for the purposes of settlement or security but this objective had not been
realized.
There is no substance in the Plaintiffs' contentions, because there is no importance to what
the Authority thought when it expropriated the land, and also because it was not proven what
the Authority thought when exercising its power. The importance is whether the conditions
detailed in the Order were satisfied.
Under the Acquisition Law, the land was expropriated for the benefit of the Defendant and
the Development Authority, and the Expropriation Certificate issued pursuant to it has
absolute value in terms of proof which almost entirely prevents a challenge to the correctness
of what is stated in it. This matter was also considered in HCJ 8067/07 Mahmud Khaled
Qasab Saabneh v. The Minister of Finance (December 29, 2009): "A certificate duly signed
by the Minister of Finance, was issued in the context of the expropriation, as required
under Section 2 of the Acquisition Law, according to which the expropriation
conditions were satisfied. The Minister of Finance's Certificate is conclusive evidence of
the facts stated in it ... and it is not possible now, after the passing of more than fifty
years, to dispute the legality of the acquisition" (Article 4 of the Judgment).
Judge Danziger also determined thus in the Jubarin Judgment:
"25. Is it possible to retroactively contest a certificate issued pursuant to Section 2 of the
Land Acquisition Law? According to the rule set by this Court, the evidential value of
the certificate issued by the Minister of Finance by virtue of the power vested in him
under the Land Acquisition Law is absolute, and the contents of it cannot be contested
[see: C.A. 816/81 Gera v. The Development Authority, Israel Supreme Court
Judgments, 39(1) 542(1985) ... even though such remarks were made obiter in the
decision, according to which in exceptional cases it would be possible to put to the Court
the question of the correctness of the factual determinations contained in a certificate
under Section 2 of the Land Acquisition Law, but this has never actually happened,
either by reason of substantial delay in raising the arguments or because of no evidence
having been adduced in this matter [See: C.A. 2275/92 Bashar v. The Development
Authority (not published, July 22 1996)]. It was accordingly held that upon issue of the
certificate, ownership of the land passes "automatically" to the Development Authority,
without it being possible to challenge the correctness of the factual determinations
contained in the certificate.
26. Consequently, in actual fact, there is no ground for considering the argument in
relation to the non-satisfaction of the conditions prescribed in the acquisition certificate,
because as determined in the decided cases, the determinations contained in the
certificate are final. Furthermore, even if a narrow opening exists through which to
contest these determinations, the Appellants have not produced any evidence to refute
them, and in view of the many years that have elapsed since the expropriation it is
difficult, if not impossible, to challenge these determinations.
In this case also, no evidence has been adduced by way of refutation, and accordingly it has
not been proven that the conditions prescribed in the Expropriation Certificate have not been
satisfied, and also, such a determination is not within the jurisdiction of this Court, as the
Plaintiffs have indeed indicated.
9
13.
Furthermore, there is no substance in the argument that what was determined in the Karsik
judgment should be implemented, because the purpose for which the land was expropriated is
no longer valid, nor in the argument that the expropriation should be treated as null and void
and the desired outcome should be the return of the land to the Plaintiffs.
In the Diner judgment, the Supreme Court President, Her Honor Judge D. Beinish, addressed
this issue as well and stated the following: "It is important to bear in mind in this regard
that the Karsik case was concerned with an expropriation under the Land Ordinance
and not with an expropriation under the Acquisition Law. As above-mentioned, the
acquisition arrangement prescribed in the Acquisition Law is a special and one-time
arrangement with its own logic and purposes and it is doubtful whether all the rules of
an expropriation under the Land Ordinance can be applied to it, including the rule laid
down in the Karsik case ... having regard to the aims of the Acquisition Law and the
nature of its provisions, we accept the approach taken by the District Court, according
to which the connection of a landowner whose land was expropriated by virtue of the
Acquisition Law is inferior by comparison with land expropriated pursuant to the
Lands Ordinance, if and in so far as any such connection has persisted despite the
transfer of the land to the Development Authority so many years ago. One of the main
indications of the weakness of the connection is the lack of the practical possibility of
contesting the legality of the expropriation in view of the status, in terms of evidence, of
the certificate signed by the Minister of Finance, as has been explained above in
paragraph 6. Furthermore, in the Karsik case there was no decision made on various
questions which might have been important in relation to this case herein, had we taken
the view that the Karsik rule should also be applied to expropriations under the
Acquisition Law, including the question of the retroactive applicability of the rule and
the question of prescription of the connection between landowner and land
expropriated from him with the passing of time ..." (Section 8 of the judgment).
The Karsik rule should not be applied also because it has not been proven that the purpose for
which the land was expropriated no longer exists. On the contrary, the public purpose which
formed the basis of the expropriation still stands - as appears from a Public Servant certificate
of Hagai Sela, the planning officer of the Southern District of the Israel Land Administration
(Appendix 5B to the Defendant's exhibits): in the Public Servant's Certificate, details are set
out of the relevant planning schemes applicable to the areas in which the land is situated, as
well as the zonings of the land contained in these plans. From what is stated in the certificate,
we ascertain that on the land that is the subject of the petition, and on land adjacent to it
included in the plans, settlements, an industrial zone, agricultural areas and afforested areas
have all been established, as well as roads and areas for the passage of electricity lines.
Accordingly, the needs of essential development and settlement as a public purpose continue
to apply. The testimony given by Sela on July 7, 2010 was not refuted.
Also, from the affidavit of Mr. Shlomo Tzisser, who acted in the capacity of Chief
Conciliation Officer and Inspector on behalf of the Israel Land Administration and is now
Director of the Inspection and Supervision Department of the Southern District of the Israel
Lands Administration, it appears that part of the land is being used for agricultural purposes,
part of it has been afforested and part is designated as "forest, forestation and open areas". In
any event, there is no basis for application of the Karsik rule where the Acquisition Law
applies, and I accordingly reject this argument.
14.
Another argument made by the Plaintiffs is that notice of the expropriation was not received.
In the aforementioned Diner judgment, it was held that "... there is no requirement in the
Acquisition Law for the sending of notice to landowners concerning the expropriation,
this being contrary to the obligation imposed on the State under Section 5 of the Land
10
Ordinance ... The expropriation mechanism prescribed in the Acquisition Law is a
special mechanism that had its own aims and does not form part of the "usual"
expropriation laws... even if there had been an obligation to personally notify the
landowners about the expropriation, failure to send such notification would not have
led to the nullification of the expropriation because the notice to the owners is merely a
declarative act and not a constitutive act (Section 11 of the Diner judgment).
Thus, the conclusion is that the expropriation was lawful and the Plaintiffs' Memoranda of
Claim should be dismissed.
The Plaintiffs' Rights in the land
15.
In light of the determination in the Jubarin judgment - a decision must be made as to the
rights of the Plaintiffs in relation to the land and nothing by virtue of a decision as to the
validity of the Acquisition Order should be construed as making the deliberation as to their
rights redundant. The Plaintiffs are not, however, entitled to have the land transferred to
them, but a determination must be made in respect of their rights, if existent, concerning the
question of compensation.
I will put the cart before the horse and say that, even though the State takes the view that the
Plaintiffs are not entitled to compensation, it was prepared to enter into negotiations with
them, and it is a pity that such negotiation did not come to fruition in terms of a settlement.
Classification of the Land
16.
The Land Law, 5729-1969, (hereinafter: "the Land Law") which came into force on January
1 1970, prescribed transitional provisions in respect of rights prior to the date of its entry into
force, and the following are those that are relevant to this case:
Section 152: "The classification of immovable property into different categories which
existed prior to the coming into force of this Law, by virtue of Ottoman legislation, is
hereby abolished." The Law repealed the Ottoman Land Code and the Land Ordinance
(Mewat) 1921, subject to the transitional provisions.
Section 153: "The ownership of property which prior to the coming into force of this
Law belonged to the miri category, shall be full ownership in accordance with the
provisions of this Law".
Section 155: "A property which, prior to the coming into force of this Law, belonged to
the Mewat category shall be registered in the name of the State; However, if a person
had received a title deed for any such property under Article 103 of the Ottoman Land
Code of A.H. 1274 or under the Land Transfer Ordinance, he or his successor shall be
entitled to registration of the property in his name".
Section 156: "The provisions of Sections 153, 154 and 155 shall not derogate from rights
which existed prior to the coming into force of this Law, in property referred to in these
Sections".
The relevant law, for the purposes of this case, is the Ottoman Code of 1858 which was the
principal source of the Land Laws in this country until the enactment of the Land Law.
The test is as to the factual position that prevailed in practical terms on the ground in 1858.
The Ottoman Code prescribed 5 categories for defining lands in the Land of Israel during that
11
period, so that the dispute is between classification of the land as "Mewat", as the State
argues, and its classification as "Miri" which is the position of the Plaintiffs.
Section 6 of the Ottoman Code defines land of the "Mewat" category as: "dead land (mewat)
is that which is not in anyone's possession and has not been allocated for public use and
has not been bequeathed to the members of any village. Land is deemed to be such land
if it is at a distance from the village or from the town, to such degree that the loudest
audible human voice from the nearest settled location cannot be heard there, and the
measurement of such distance is a mile and a half or as far as one can walk in half an
hour."
Section 103 of the Ottoman Code provides as follows: "desolate places which have not
been in the possession of any person under a title deed and have not previously been
allocated to residents of villages or towns; and where such desolate places are located at
such a distance from a town or village that the loudest voice of a person standing at the
edge of the village is not audible in them, such as: rock mountains (tashlik), naturally
wild fields (otlak) and groves of oak trees (franlik) - are Mewat lands. They can be
opened up for development as seeding ground should the need arise, under license from
an official and without payment - on condition that the right of title (raqba) remains
with the State, and all the laws that apply to cultivated lands shall also apply to lands of
this type. If a person has received, under a license from an official, a place for the
purpose of its development in the manner cited above and it has been left undeveloped
for a period of three years without real justification, such place shall be transferred to
another party. Where a person has developed and converted such lands into cultivated
lands without obtaining a license, its Tabu value shall be collected from him and he
shall be given a Tabu title deed when the land is transferred to him." (Dr. A. Ben
Shemesh, "Land Law in the State of Israel", published by Mesada, 5713-1953, page 147).
In the El-Hawashleh judgment, it was held that there are two aggregate conditions that must
apply for classification of land as Mewat: "(a) Distance of the land from the settlement,
and (b) it being located in a desolate place without having previously been allocated to
anyone, and without it having been occupied by anyone" (page 147 of the judgment).
We must therefore now examine whether the two abovementioned conditions have been
satisfied in this case herein.
Distance of the plots from a settled location
17.
The Plaintiffs argue that the El -Uqbi family had been using the land at the beginning of the
20th century and even previously. Even before the establishment of the State, there was a
developed Bedouin settlement, in El Araqib, which contained a school (P/3), buildings and
tents as well as extensive cultivation of the land. The testimony of Nuri El Uqbi (Transcript
of December 7, 2009, pages 15-16) and other witnesses who had lived in El Araqib shortly
before the establishment of the State, also testify to this, and they also remembered that
barley, wheat and trees grew there and also that there were water reservoirs (Court Record of
June 7, 2009 and of October 26, 2010).
The Plaintiffs also claimed that it had been proven that in the 19th century the valleys of
Beer-Sheva and the northern Negev were populated by Bedouin tribes who were engaged
more or less intensively in agriculture with some of the cycle is fixed and some is seasonal,
but cyclic as to turnover of the crops.
12
The Plaintiffs rely on the expert opinion of their expert, Professor Oren Yiftachel, who
submitted three expert reports. In his opinion dated September, 1 2010, he expressed the view
that: "... Even tribal areas, meaning those over which groups of tents had been spread
where the land was not registered with the sovereign, were considered as settlements"
and this he bases on the definition of "village" that is found in the Land Ordinance
(Settlement of Rights of Title) of 1928 in which it is stated that "a village includes village
lands situated in a municipal area or in a tribal area, or bordering upon such areas or
any part of such lands ... 'also including' all village land situated within and adjacent to
municipal areas, tribal areas ... tribal areas include .. in which groups of tents had been
spread where the land is not registered with the sovereign, were considered as
settlements. (Page 8 of the expert opinion.) In his opinion, "these groupings definitely
functioned as villages, i.e., as a permanent settling anchor of small communities who
engaged in a range of livelihoods ..." (page 10 of the said expert opinion. The marks of
emphasis appear in the original.) He adds that from 1945 aerial photographs (Appendix 10)
it can be seen that at that period there was "intensive cultivation covering most of the plots
at El Araqib" (page 13 of the expert opinion). As evidence of the existence of an active
village at that location, we are referred to an aerial photograph taken in 1949, in which four
groups of tents can be seen, each one consisting of between 10-30 tents, a cemetery, a stone
building, a grain barn, a dam and a large water pond, and several structures such as sheds and
stables (page 14 of the expert opinion). He concludes from this, the continuity of existence of
the village also following the establishment of the State, and consequently also the
conclusion that the plots had been in the possession, use and ownership of the late Sheikh
Suleiman Mahmud El Uqbi and his son, the late Ali Suleiman Mahmud El Uqbi - the
Plaintiffs being their heirs.
The Plaintiffs also argue that the documents that have been presented support the existence of
a settlement, thus for example, the lease of land agreement (P/5), a 1930 agreement of
division of lands (P/10) a sale agreement (P/13), receipts for "tithe tax" that the Plaintiffs'
families paid between 1922-1946, during the period of the British Mandate, proving the
cultivation of the land and according to this report, the British Mandatory authorities had
recognized the rights of the grandfather to the land, whose name appears under the item of
ownership on five separate occasions in relation to five different plots in a documents report
that indicate agricultural use of the land (P/17, P/18), from which it is possible to conclude
that there was use of the land by the Plaintiffs (Appendix 6 to the first expert report of
Professor Yiftachel).
The Plaintiffs also rely on the expert opinion of the Surveyor, Mr. Abu Fariha, who produced
a detailed map in which more than a hundred sites were marked from which it is possible to
ascertain settlement, such as dwellings, dams, wells and waterholes.
Professor Yiftachel is of the view that contrary to the expert opinion of Professor Kark, a
study of the travel books, on which she relied, shows that the Negev, in the region covered by
the claims, was under cultivation. Edward Robinson describes the situation in May 1838 as
seeing extensive areas in which persons were in the process of reaping wheat. This is also
how the English traveler R.W. Stewart saw Bedouin of the El Ezazmeh tribe plowing with
their camels near Lakiya in 1854. The English Surveyor, Claud Connor, in April 1875,
observed extensive ploughed areas in the north-west and so forth (Section 30 of the Plaintiffs'
closing arguments).
18.
The State relies on the expert opinion of Professor Kark, who examined the factual situation
as it was in 1858 and concluded, based on historical records and maps of that period, that
there was no permanent settlement in the claim area, nor anywhere close to it, and that the
Plaintiffs had not proved the existence of settlements in the area, and in regards the Ottoman
13
period, they have not submitted any evidence for the relevant period, namely 1858, but rather
specifically in respect of 1945.
19.
On behalf of the Plaintiffs an expert opinion was submitted, written by Mr. Shlomo Ben
Yosef, an expert in the interpretation of aerial photographs. His opinion and report not only
relates to the land that is in dispute but also to other lands that are not relevant because he
was asked to do so (Court Record of February 24, 2010, pages 13-18). This was done by the
Plaintiffs out of economic considerations. It is neither proper nor correct to submit in this
case, which is complex in any case, a report and opinion that relates to land that is not
relevant to the claims.
The opinion relies on aerial photographs taken in 1945. The expert claimed that a Bedouin
rural settlement was in existence but it became evident that it is a thin spread extending over
an area of about 30,000 dunams on which there were isolated dwellings. Also, he did not
make a comparison between the Mandatory maps of the relevant year and the aerial
photographs, or those from previous years, and neither did he coordinate between the maps
of the Block and the Plot (page 5 of the Court Record).
The witness did not indicate any point detailed in his opinion but rather relied on general
statements. (Page 19 lines 16-18). The expert asserts "that is how an aerial photograph
shows the life of nomads". (Page 22 lines 3-4), and that the terminology "continuous
Bedouin Arab settlement is Prof. Yiftachel's fingerprints... this part is something he
gave. If I had never met Prof. Yiftachel it might be that I would have written nomads.
(Page 23 lines 3-9).
Contrary to the opinion expressed by Prof. Yiftachel whose view was that the 1945 aerial
photographs pointed to the existence of intensive cultivation covering most of the plots in El
Araqib (page 13 of the first expert report), in the questioning of Mr. Ben Shlomo an entirely
different picture emerged of very partial cultivation, to say the least. Thus the percentage of
cultivation in Araqib 6 is 21%, in Araqib 60 at a rate of 5%, where only 3 dunams are arable,
the rest being the route of a Wadi, ravines were no use was possible at all, not even for
pasture. He adds that 10% of the Araqib lands are unusable ravines. With regard to Parcel
No. 6 he states that most of the area was expropriated by the military and military posts are
stationed on it. In Araqib 2, the whole of the area is being cultivated (page 26-27, 51). It is
not clear from this data as to how Prof. Yiftachel saw intensive cultivation covering most of
the Araqib plots - puzzling. The conclusion is that no basis of evidence has been adduced in
respect of intensive cultivation, nor in 1945.
20.
Prof. Kark found in her expert opinion that prior to 1858 there were no permanent
settlements in the area that is the subject matter of the claim, nor anywhere near it (the expert
opinion dated January 30, 2010, page 5), with the nearest settlement, HUJ, (also known as
Hirbet Huga) situated near Gaza at a distance of 6.9 kilometers north of the plots that are the
subject of the dispute. The first permanent settlement is Be'er-Sheva founded in 1900 and
was about 11 kilometers south of the Araqib plots and a distance of 26.8 kilometers south
east of the Sharia plots (page 11 of expert opinion A). In addition there were the settlements
of Qawfhiya and Muhirqa, which in her estimation were established at the end of the 19 th
Century or at the beginning of the 20th Century, situated at a distance of more than one and a
half miles from the Sharia plots, where according to land registration maps of 1893 the two
villages were planned at a distance of 2.6 kilometers (Qawfhiya) and 3.6 kilometers
(Muhirqa) from the plots (pages 11-12 of expert opinion B).
The conclusion relies on a number of sources such as official documents, historical maps,
travel literature and on the review of a British fund for the surveying of the land of Israel the Palestine Exploration Fund (PEF), carried out between 1871 and 1877, which was an in
depth and fundamental review, the results of which were published in 7 volumes and 26
14
folios of maps. The review outlines the settlement related and archeological situation of each
site and this review included all the plots that are in dispute. The map folio relating to the
claim area shows that for the most part the area is a Bedouin grazing area as well as several
antiquity sites and no permanent settlement is mentioned (page 5 of the first report). Prof.
Kark adds that "one of the chief persons carrying out the survey was Claude Renier
Conder... of the British Army Royal Corps of Engineers who also added, in the book he
wrote about the work of the survey, that Daharya is the last permanent settlement in
the southern part of the country and beyond it are grazing lands" (page 6 of the expert
report).
From a cross-reference between the map and the text of the review, Prof. Kark concludes that
there were no settlements in the claim area in respect of which the survey was carried out.
This survey is consistent with the travelogues published at that period also according to
which there was no permanent settlement situated on the land.
21.
The Plaintiffs in their closing arguments attack the expert opinion of Prof. Kark and point to
shortcomings in her testimony. They also claim that the expert did not write the report herself
but was assisted by research assistants and by a G.I.S man, who carried out the survey and did
the measuring for her and did not testify (Court Record May 6, pages 10-11). The quotations
from the travel literature were not selected by her but by the research assistant who also
wrote some of the text, and accordingly the expert opinion constitutes hearsay evidence as it
prejudices the right of the Plaintiffs to cross-examine the person who was responsible for the
findings of the report. It was further argued that Prof. Kark consistently omitted sources that
mention Bedouin cultivation of land in the Negev or the existence of the El Uqbi Tribe
(Court Record May 6, 2001 and May 13, 2001). It was claimed that the P.E.F. maps were
accurate, but contained a considerable number of errors. Additionally, Prof. Kark did not visit
the area and did not do field research and a geographical report, which refers to settlements
of 150 years ago must be based on a physical examination of the findings on the ground,
because there are plentiful signs there, such as cemeteries, ruins, still standing dwellings,
wells and dams.
It was further argued that drawing conclusions from travelogues written by travelers and
researchers in the 19th Century, falls within the description of hearsay evidence and it is
doubtful whether they are accurate, as the lack of credibility on the part of the traveler is an
inherent feature of this group of travelers. The writers in question are biblical researchers,
orientalists missionaries or representatives of colonial powers and spies seeking to serve their
masters (Section 28 of the closing arguments) and the travelers passed through during the
summer, when the fields are desolate and abandoned and consequently when such a traveler
makes no mention of agriculture in the Negev or the existence of settlements, no adverse
conclusion should be drawn from such an omission.
22.
I am not clear about the criticism of Prof. Kark, because Prof. Yiftachel also relied on the
opinion and report of researchers or the writers of travelogues who had visited the country,
and the researchers on which he relied are no more credible then those on whom Prof. Kark
chose to rely. She at least had read the sources on which she relied. Additionally, as to the
argument that she had been assisted by research assistants in writing her opinion, there is
nothing improper about this as long as she had read the material that was collected for her by
the research assistants and decided to integrate it in her opinion and report. Prof. Yiftachel
was also helped by a research assistant in finding relevant material and he even adopted the
footnote to which he was referred by his research assistant, but did not take the trouble to
read the text himself, then he would have discovered that the footnote is not exhaustive of the
15
text and the conclusion that he came to is inaccurate (Court Record March 8, 2010 pages 1819).
If we were to adopt the approach taken by the Plaintiffs, then the two opinions of the experts
should be discounted, and since the burden of proof lies with the Plaintiffs, the conclusion
that must be drawn is that they have not discharged this burden. Unlike the Plaintiffs, I do not
believe that accepting assistance from research assistants should be construed as
disqualifying the expert opinion, as long as the expert examines and tests the actions of the
research assistants, either adopts or rejects them, as the case may be, and signs on to his
expert opinion after having examined and weighed the relevant material as well as having
taken the trouble to read it.
Additionally, in respect of the help that Prof. Kark received from the G.I.S man, this does not
disqualify the expert opinion and had the Plaintiffs believed that the surveys were not
accurate they could have asked to call him to testify or to submit their own surveys, or at the
very least their expert would have made reference to these surveys.
In choosing between the two expert opinions, that of Prof. Kark is preferred in my opinion.
Prof. Kark relied in her expert opinion on researchers who came to carry out research works
(Court Record May 6, 2011, page 59 and onwards). The review carried out by the British
Engineering Corps, the PEF survey, which marked the findings in the area exhaustively to
the tree and nomadic dwelling, neither mentioned nor marked any settlement in relation to
the period between 1840 and 1917.
Prof. Kark clarified in her testimony that before the Fund people had prepared "the maps of
the area itself they had prepared draft survey maps, in which they had drawn every
wadi, every settlement, every tree, every house... they would arrive at a particular area,
set up camp there and would go out to survey the territory... they actually went over all
the field conditions of every area and not only drew the maps but as I have said they
had... a journal in which they actually recorded everything that they had encountered
and published it subsequently in seven volumes... in our article we... simply gave an
accurate detailed breakdown to the minutest degree of deviation of these maps as
compared with today's resources and maps". (Court Record May 6, 2010 pages 82-83).
Prof. Kark subsequently states that the Fund Engineers went over most of the territory
thoroughly throughout its length and breadth (pages 85-86), and they were in the area for
about 7 years (Court Record May 13, 2012, page 14). She specifies the distance of the
existing settlements from the area of the plots that are in dispute based on the details
contained in the survey, (page 88) and states "thus there are no settlements at a distance of
1.5 miles from the claimed plots. The nearest settlements - Huj 6.7 kilometers, Gaza
16.2 kilometers..." (page 89). The expert also compared the results: "...with 12 other
researchers and maps of 12 other researchers... I examined the sequence of events over
time. From 1840 until 1917 I also compared texts, descriptions, maps, all the means
that were at my disposal in order to make a genuine comparison and see how the
process developed over time. Not only... what was occurring on the ground over a
certain crosscut at a certain point in time" (page 91).
The expert relies, as previously mentioned, on the PEF Survey carried out by the British
because "I have here a detailed table of what there was within the confines of all these
plots in the various years starting from 1840 and up until 1917 and in this table I also
prepared the table for myself in order to see... and I have there... as to whether
settlements appear at a distance of 1.5 from the plots of the claim. The nearest
permanent settlements are far from the disputed plots according to the historical map.
A description written of the settlements appearing on the historical map as to whether
any Bedouin tribe is recorded as living in the area. Whether archeological sites or ruins
16
appear for example, the dam... there were also dams in existence in the Nabataea Period
and during other periods. It could well be an ancient dam. However I did not come
across this... there are ruins of an isolated house with a well and a ruin but as for the
rest I see on the other maps, there is none, none, none, neither is there any agriculture
nor any remains and in actual fact up to the end of the First World War". (Court
Record May 6, 2010 page 40, line 7 to page 41 line 6).
There is no substance to the argument that the expert did not visit the area. Firstly, she did
visit the area although not for the purpose of the preparation of the expert opinion (Court
Record May 6, 2010, page 28, 30-33). Furthermore, I do not attach much importance to
visiting the area when we are talking about the existence of a settlement in 1858. Secondly it
should be observed that most of the findings to which the Plaintiffs are pointing relate to an
area outside the confines of the plots and in actual fact the only thing there is in a particular
plot are the remains of the home of Sheik Suleiman El Uqbi and a dam in Araqib 2 (page 36
line 19 and page 37 line 16). Ultimately, the Plaintiffs acknowledged that the house is not
from the Ottoman period but the Mandatory period (page 38 line 8).
23.
I felt uncomfortable with the cross-examination of Prof. Yiftachel, when it became apparent
that he had relied on sources and quoted them without having taken the trouble to read them,
but had quoted from quotes that had appeared in another source. The squirming of the expert
on the witness stand in this regard not only left an uncomfortable feeling, it is truer to say
embarrassing for the expert, in the position he found himself in. The expert must not only be
objective in submitting his expert opinion but he must at least read the reference documents
to which he is referring or should immediately state without evasions that he had relied on
secondary sources, instead of undergoing a lengthy and embarrassing session of questioning
and ultimately having to admit this, and it's needless to say more. It is enough just to study
the cross-examination (the transcript of February 11 pages 50-65 and the transcript of March
8, pages 8-9) and I will not expand any further on this matter.
This course of conduct started with the submission of a deficient expert report, its
amendment, without the amendments being brought to the Court's attention. There were a
number of flaws in Prof. Yiftachel's first report and accordingly a second report was
submitted, however the second report, when submitted, bore the date of the first report and it
is possible to understand from this that this is the same report, but this is not the case. It
became evident that in the second report later amendments had been introduced, without
either the Defendant or the Court being referred to this, with additional documents also
having been attached to the report that had not been attached to the first report. Anything can
be amended, but the facts as they exist must be presented and one must not allow the matter
only to become evident during cross-examination. This course of conduct is not necessarily
attributable to the expert but possibly also to the Plaintiffs, but this is not the proper way to
submit an expert opinion.
On page 7 of his expert opinion, Prof. Yiftachel comes to the conclusion that the British gave
"... a seal of approval to the functioning of the Bedouin system of land and settlement, as
appears for example from the comments of Winston Churchill... in a meeting with
Herbert Samuel, the High Commissioner, in 1923:
'The system of title ownership in Be'er-Sheva... as laid down in the traditional law, is
recognized by the British Administration'.
The reference cited by the expert is:
McDonnell Law Reports of Palestine 1920-1923 (the marks of emphasis appear in the
original). It ultimately transpires that there is no connection between the reference, the P.L.R.
and the quotation to which the expert refers, to the statements originally made by Churchill,
17
and accordingly later during the hearing the expert states that the quotation exists but in a
slightly different form (Court Record March 8, 2010, page 93).
The absurd is that the expert relied on P.L.R. without even being aware that these are records
of Court judgments. When he was asked about this he squirmed on the witness stand in an
attempt to evade an answer by trying to redirect the answer elsewhere. When he was
informed that it was a record of a judgment and he was asked whether he confirms this the
expert replied "you are trying to lead me to where I will not go..." and the dialogue
continued down this path (Court Record December 11, 2010 pages 11-22). Anyone can make
mistakes, but in state of error one could say so, instead of conducting a long and unnecessary
dialogue that does no credit to anyone.
An expert, as the title suggests, must examine the issue from the professional aspect,
particularly when one is dealing with a period of approximately a 150 years ago. Thus for
example, as I have already indicated, the expert concluded, from the aerial photograph of
1945, that there was intensive cultivation, while under questioning of the aerial photographs
interpreter a totally different conclusion emerges. Not only this, the expert confired that the
British Army had used one of the plots and therefore it was not possible to cultivate the plots.
This important fact, although within the knowledge of the expert, was not expressed in the
expert opinion but only under cross-examination (Court Record of March 8, 2012 page 99)
still he stated in his expert opinion that there had been intensive cultivation in all the plots.
It is also strange that the expert did not find it necessary to refer to and express his opinion on
the P.E.F. survey on which Prof. Kark relied, which is material to the proceedings and also
specifically refers to the plots that are the subject matter of the claim, and he only stated in
response to Prof. Kark's report that inconsistencies had occurred in the descriptions of
travelers, because in the 1880 Review carried out by Conder the area of Hirbet Zahliqa is
described "as ruins...piles of rubble and stones and remains of shacks made of mud and
stone", while several years later in 1897, a traveler named Musil, who slept overnight in the
area states that there was nothing there (page 4 of the third expert opinion). We are not
talking about a few years later but at least 17 years, which is a long period of time during
which changes could certainly have occurred in the area. However, the expert did not deem it
necessary to make reference to the substance of the survey, the maps and its importance.
In view of the foregoing I have preferred the detailed and comprehensive opinion of Prof.
Kark over that of Prof. Yiftachel.
24.
Additionally, the certified surveyor who was called as an expert on behalf of the Plaintiffs,
Mr. Udah Abu Farieha, testified that he had not surveyed the plots nor measured the
boundaries but "...I surveyed the sites marked for me on the computer", sites to which he
had been referred to by Nuri El Uqbi (Court Record February 29, 2010, pages 56, 59, 75)
and he was unable to say in which block every site was situated because he had not checked
this (pages 57-58). All the sites that he had indicated are outside the boundaries of the plots
with one exception (page 73 lines 6-11). As there is no detailed site plan but rather a map that
shows sites only (page 77 lines 15-17 and page 91). The outcome from the manner in which
this survey was carried out is that there is no clear image that confirms what exists in the
area, because the witness also confirms "... everything that is outside the area of the grid
and so it is not located in the correct place... it is not located on this map... (Meaning that
it is not located correctly on the map submitted to the Court (pages 63-64). The witness
further states that this was not part of his job.
25.
Prof. Yiftachel referred to the expert opinion of Prof. Kark and to the material on which she
relied in her conclusions and expressed the view that "Kark makes no reference to the fact
that most of the travelers [meaning the research travelers on whose descriptions and records
both of the experts partially based their expert opinion - S.D.] came equipped with a
18
westernized perception with regard to the shapes and spaces of settlements...in areas
from which they came, settlements were clusters of stone buildings or huts, relatively
densely built and with a clearly defined external boundary. However, the geographical
distance, in terms of the settlements, shows that during that period the settlements in
areas on the edge of the desert were otherwise, in that they generally contained clusters
of tents that were relatively distant from each other ... These, however, were not viewed
as settlements by the Western travelers who were insufficiently aware of the spatial
patterns of the Bedouin communities lives ... The problem therefore, in my opinion,
stems from the perceptions and working methods of the travelers themselves, who did
not understand the Bedouin region and the way of life of the local population, which
organized itself in the space according to its own rules ..." (page 5 of Professor Yiftachel's
report of March 2010). Even if we were to start off from the assumption that this indeed was
the case, the necessary basis of evidence has still not been provided to the effect that
settlements were indeed in existence at that time. Even the Plaintiffs' own expert, Shlomo
Ben Yosef, the aerial photographs interpreter, is of the view that we are talking about a
nomadic population, and he refers to 1945. The attempt to alter this perception by Professor
Yiftachel with the object of placing the Plaintiffs within the framework of the Ottoman Code
was unsuccessful, as was his guidance that we are dealing with semi-nomads - defining them
as semi-nomads because they worked the land for part of the year.
A settlement as the name suits it, is not a settlement when the occasion arises or a settlement
for part of the year. Even if we were to start from the assumption that the Bedouin had
abandoned the settlement for a particular period of the year because they needed pasture land
and a livelihood, and the place where they were living at did not enable them to do this, we
still do not come within the framework of the definition of a permanent settlement.
Even if we were to accept as a fact that the Plaintiffs stayed on the disputed plots for part of
the time - which was not proven, and remains within the theoretical definition of Professor
Yiftachel, at least in respect of the relevant period - then at most it has been proven that it
became temporarily settled for a certain period of the year. We should not forget that the
Plaintiffs are claiming title to 19,000 dunams of areas of the Negev (page 11 of Professor
Yiftachel's first expert opinion) whereas Ben Yosef refers to a minimal number of sites. The
proposition offered by the Plaintiffs that the Bedouin should be viewed as semi-nomadic,
who return cyclicality to the same place and therefore their departure from the same place is
not abandonment, because this originates in the need for livelihood and due to the weather
conditions, conflicts with the determination of the Supreme Court in the El-Hawashleh
judgment. In that case, the relevant date was determined for the definition of the settlement
and it is earlier than 1858. It was also held that temporary residence and staying for part of
the year, per se, do not create a settlement.
26.
Moreover, His Honor Judge Halima states in the El-Hawashleh judgment that "the situation
prevailing in the Negev in 1870 was investigated by the learned scholar Palmer ... who
traveled in the region and saw from close up the situation prevailing in the Negev. He
found desolation, ancient ruins and nomadic Bedouin who were not particularly
cultivating the land, not tilling it and were certainly not engaged in agriculture. Even
when rain fell and there was natural plant growth, they used the water for watering
their herds but not for the purpose of agricultural cultivation.
If we were to add to all this the nomadic character of the Bedouin tribes, and the fact
that the region is generally arid due to lack of rainfall for most days of the year, the
conclusion drawn by the Court at first instance accords with making an objective
finding as to the character of the location". (page 149 paragraph 7 to page 150 paragraph
1). Professor Yiftachel disputes also this finding and claims that the Bedouin are not nomads
but are semi-nomads, as stated above. What in practical terms is the meaning of semi-
19
nomads, as the answer comes from the essence of the definition as whether they are seminomads or nomads, they were not in a permanent settlement and in one place. According to
his viewpoint, location is of no importance rather than the reality on the ground. It was held
in the El-Hawashleh judgment that the Bedouin were not staying in the same place
throughout the year, but only for part of it, and it follows from this that we were not talking
about a permanent settlement. Professor Yiftachel confirms that the Bedouin were not staying
in one settlement location for the whole year and he therefore chose to define them as seminomads, but this does not change the substance or the content, and the substance is that the
Bedouin did not stay in one place all year long, and consequently the conclusion is that no
permanent settlements were in existence and that temporary residence does not create a
settlement.
The Plaintiffs are seeking a finding by the Court that "fixed seasonal camping sites" must
also be defined as a settlement, in other words to view as being the nomadic way of life that
it is sufficient to be in a certain location for part of the year in order to create a permanent
settlement. I ask myself, which of the locations should we define as permanent settlements,
are they places where they stay for the winter months or during the summer months, or
possibly in the spring or possibly - all of them?
The question must also be asked as to how 144 persons of the El Uqbi tribe (according to the
1922 census, when some of them were children) occupy and cultivate about 19,000 dunams,
as Professor Kark, the Defendant's expert, wondered in amazement, an amazement that was
not provided with an answer.
Thus, the conclusion is that there was no permanent settlement in the area in dispute and
neither at a distance of a mile and a half from it in the relevant period.
Were the lands possessed by or allocated to the Plaintiffs
27.
The second condition is possession of the land or its allocation to somebody. It was held in
the El-Hawashleh judgment that "... we all accept that not all land of a distance of more
than a mile and a half from the nearest settlement is "mewat" land. At all events, it is
also essential and necessary to prove Condition B ... namely: it must be proven that
such land is also situated in a desolate location which has not been possessed by anyone,
nor was it allocated to anyone" (page 148 of the judgment, opposite the letter 'G') - we shall
therefore examine this condition.
In the El-Hawashleh judgment, an across-the-board conclusion was reached according to
which the Negev region was desolate and uncultivated. According to A. Ben Shemesh in his
book, Land Laws in the State of Israel, Mesada - 1953, the meaning of this condition is: "that
it is not in the possession of someone and has not been allocated to the public: these two
conditions are characteristic of mewat land: 1) it is not in anyone's possession as miri
land 2) it was not allocated to the public as matruka" (page 38 above; the marks of
emphasis do not appear in the original – S.D; see also the El-Hawashleh judgment page 149
opposite the letter 'E').
As I will explain in detail later on, the Plaintiffs have not proven that the lands were allocated
to them or had been possessed by them or that they had cultivated the lands to the extent of
them being classified as 'miri' lands.
28.
Whether we are concerned with 'mewat' land or 'miri' land, the Plaintiffs are still required to
prove their alleged rights in the land, whether by proof of registration in the tabu and
possession of tabu title deeds, or by proof of possession and cultivation pursuant to Section
20
78 of the Ottoman Code, which also ultimately leads to the issue of a tabu title deed - all this
prior to the Land Ordinance, because after it there was an obligation to obtain the agreement
of the authorities for cultivation of the land, otherwise the possessor will be deemed to be a
trespasser.
Even if the Plaintiffs believe that they have proven generations of possession, use and
ownership of the land by members of their families of the El Uqabi tribe, it must be reemphasized that there must be a legitimate legal basis for these claims in accordance with the
relevant legislation of the time, and in accordance with judicial decisions made in decided
cases.
After having gone over and studied all the material evidence submitted to me, I have found
no evidence of cultivation of the land by the Plaintiffs or their families prior to the enactment
of the Land Ordinance. The file of exhibits on behalf of the Plaintiffs contains a surfeit of
documents which the Plaintiffs argue prove their rights of title to the land, and that the lands
have been cultivated during the years, but it does not contain any concrete documents dated
prior to 1921. Moreover, the Plaintiffs have not proven that prior to the enactment of the
Land Ordinance, they had obtained tabu title deeds in respect of the land in question, and that
they had paid their value in a manner that vests them with title to the land.
The sale agreements which the Plaintiffs have attached do not prove a chain of rights to the
land, registration in tabu of the rights of the sellers and/or their predecessors has not been
proven. The sale agreements submitted do not identify and define clear boundaries of the
claimed plots as opposed to what is alleged in the Memoranda of Claim.
Ms. Hagit Manos, an Assistant Settlement Officer in the Land Settlement Office in Be'erSheva, the signatory of the Public Servant Certificate submitted by the Defendant, was
questioned about the marking of boundaries: "as soon as a Memorandum of Claim is
submitted, the current practice is that a survey map must also be produced ... The
previous practice was that a representative of the Land Settlement Officer would go
and survey the area according to what the Plaintiff had stated, and the Surveyor was
only engaged in the technical work of measurement" (Court record July 7, 2010, page 8,
lines 18-22). As part of the testimony given by Ms. Manos, copies were submitted of the land
surveys regarding the plots of "Sharia 134" (P/55), "Araqib 6" (P/56) and "Sharia 133"(P/57),
carried out by Shlomo Tzisser (who also testified on behalf of the Defendant), in the years
1973-1974. Remarks were added on the exhibits in 1978 and 1980, written by Abtan, who
was the Deputy Settlement Officer, in which the size of the plot was indicated and the degree
of cultivation according to aerial photographs from the period of the Mandate.
Memorandas of Claim do not amount to rights. It was incumbent upon the Plaintiffs to
translate the agreements on which they rely and to locate them on the maps and surveys that
were carried out, and to compare them to the Memoranda of Claim, but this was not done.
Is it possible to acquire rights in Mewat land
29.
M. Duchan, addresses this question in his book "Land Law in Israel", Second Edition,
Jerusalem - 5713: "According to the customary method in Israel, even back in the time of
the Ottoman administration ... whoever cultivated any of these Mewat lands could
obtain a registration certificate (Kushan) of land of this category as Miri land ...
However, under the Mewat Land Ordinance published by the Civil Administration of
Palestine in 1921 ... no person had authority to take over dead land and cultivate it
without Government consent, and if he did so he would not receive a registration
certificate (Kushan) besides which the Government would prosecute him for trespass.
21
Under this law, changes were made in Section 102 of the Land Code to the same effect,
namely that from the above-mentioned date Government officials were not authorized
to grant a right to develop and cultivate Mewat lands... Whomever revived dead land
after publication of the Ordinance had no right to obtain a registration certificate"
(page 49).
The Land (Mewat) Ordinance of 1921 (hereinafter: "The Land Ordinance") changed the
Ottoman Code, and emphasized the need to obtain a permit from the authorities as well as the
anticipated criminal sanction upon a breach of such obligation: "A person who fences off or
cultivates desolate land without the consent of the lands administration department,
will not be entitled to obtain a Kushan deed as to such land, and furthermore such a
person can expect to be prosecuted for trespass. Any person that cultivates such land in
the future without a license must notify the Land Registration Records Officer within
two months and apply for a registration certificate".
This was stressed by His Honor Judge Berenson in C.A. 518/61, State of Israel v. Salah
Badran, and 11 others and Cross-Appeal, Israel Supreme Court Judgments 15 1717: "Until
the enactment of the Land (Mewat) Ordinance of 1921, a person who was reviving and
cultivating dead land with the permission of the authorities was entitled to it by virtue
of such revival, and he was entitled to receive Kushan [a registration certificate - S.D] in
respect to it as Miri land, and if he was reviving it without obtaining permission he
could acquire it by payment for its value (Badel Meytal). The 1921 Ordinance changed
the situation completely. It prescribed that from the date of publication of the
Ordinance and subsequently, a person reviving and cultivating dead land without first
having obtained governmental consent does not personally acquire any right to receive
Kushan on it, and he is likely to be prosecuted as a trespasser. As for revival carried out
prior to publication of the Ordinance without authorization from the authorities, the
option of providing a foundation for a legal right to receive Kushan on the land was
afforded, by giving appropriate notice to the Land Registrar within two months of the
date of publication of the Ordinance" (Page 1720 of the Judgment opposite the letter 'G').
In fact, the Land Ordinance provided a final opportunity for registration of mewat land,
which had been revived, by giving notice within two months of publication of the Ordinance.
Rights of title are not acquired in a general way and the authorities decided to put matters in
order by granting a period of grace to whoever had revived and had cultivated dead land, but
the condition for this was, as stated, the giving of notice to the Land Registrar. It has not been
proven that notice was given to the authorities either in advance or retroactively, but rather it
was argued that the Plaintiffs were exempted from doing so with the consent of the
authorities. It was not proven that the Plaintiffs had obtained certification from the authorities
as to non-registration of the rights in Tabu as provided in Section 103 of the Land Law and
the Land (Mewat) Ordinance of 1921.
30.
Cultivation in itself does not transform the land from Mewat to Miri and as long as it has not
been registered otherwise, the land remains as Mewat Land, C.A. 40/50 El Habab and others
v. State of Israel, Israel Supreme Court Judgments 7 (1) at page 494. It was held in this ruling
by His Honor Judge Olshan that for the Appellants to succeed in their claim they must
"...prove in respect of every area of land they claimed that they had indeed revived it
prior to 1921 and had continued maintaining these areas in a state of livelihood at least
until the time of submission of their claim" (Page 495 paragraph 3 marked by the letter
"F"). And later the following was stated:
22
"In the case of Krikorian v. the Attorney General, C.A. 226/52 [1[, the Court held - I
am quoting from page 52 of Mr. Duchan's book "Land Law in the State of Israel" "the concept of revival has to be understood in terms of actual cultivation and a real
uninterrupted livelihood; the outcome must be a complete, permanent and unceasing
change in the nature of the cultivated land. The Court also held that for as long as there
was no change in the category of the land by registration of title (kushan) in the name of
the person cultivating and reviving the land according to the Land (Mewat) Ordinance
of 1921 - the land continues to be within th same category that it was at the beginning,
meaning it remains in the Mewat category and does not become Miri even if an
application has been submitted on behalf of the party claiming the right of cultivation
and revival, but the application (and the claim) not having achieved the actual outcome
of a transfer of the land into the name of the claimant - the land does not come out of
the Mewat category and continues to be as it was".
It was decided in that Judgment that it is not sufficient to prove cultivation but necessary to
prove that the cultivation lead to revival and that a person cannot claim title to a large area
merely by the planting of isolated trees (Page 497). In the case herein, no evidence was
adduced as to cultivation of the land in 1921, and even if there had been such cultivation, the
condition for it, as mentioned, is application having been made to the authorities and
registration of rights in Tabu. All that was produced was a single 1945 aerial photograph,
from which the most that could be ascertained is, as the Plaintiffs' witness the interpreter Mr.
Ben Yosef, testified, was that in Araqib 6, for example, there was cultivation of 21% of the
area and only 5% in Araqib 60, with the remainder of the land being ravine land not suitable
for cultivation (Court Record of February 24, page 25).
Besides which it is not possible to revive Mewat land and transform it into Miri, other than
by the sovereign authority, as set out in detail in Hilleli's un-refuted expert opinion,
especially when the land has not been registered in Tabu in the name of those whom the
Plaintiffs claim obtained the plots from.
31.
As mentioned, the Plaintiffs did not notify the authorities nor did they register their rights,
and since they acknowledge the difficulty as a result of this, they reiterate the argument that
under Bedouin Law and the autonomy given to them, they were granted exemption from
registration. In this context they argue that recognition should be accorded to the system of
laws and customs practiced in the Bedouin sector, which is externally binding and is
evidence of their title to the land, in other words that custom supersedes law, with this state
of affairs having been within the knowledge of the Ottoman Authorities and their successors,
the British, and honored by them.
According to the approach of Professor Yiftachel, in his expert opinion of August 28, 2009,
there was, during the Ottoman period, support for the validity of the traditional ownership of
the Bedouin of land, and so also during the period of the British Mandate the seal of approval
was given to Bedouin custom in relation to lands as appears from the quotation cited by the
expert, from the remarks of Winston Churchill in 1923, according to which the British
Administration recognized the system of title ownership in Be'er-Sheva prescribed under the
traditional law (Page 7 of the opinion). Professor Kark in her expert opinion of January 31,
2010 (Appendix 1C of the Plaintiffs' Exhibits) disputed these findings and expressed the
belief that both during the Ottoman period and the British Mandate there was no allembracing recognition of title of the Bedouin to the Negev lands (Section 3 of the opinion,
line 26 and onwards).
23
There is no real substance in the Plaintiffs' argument as to autonomy in respect of the areas of
land in the Negev - the non-application of the Ottoman Code in the Negev and the decision of
the British Mandate not to apply the 1921 Mewat Ordinance to the Negev.
The claim that Government Officials such as Winston Churchill had committed themselves
to non- application of the law has not been proven. Furthermore, the remarks of Winston
Churchill as originally stated, were not proven and I can only agree with the submissions of
the Defendant that this was an utterance by a politician which cannot be construed as having
legal effect or as altering the essence of the legislation. If Churchill, in his capacity as
Colonial Secretary, had so intended, this would have found expression explicitly in
legislation. Nor is it clear as to what Churchill meant when he stated that special rights and
customs will not be prejudiced. At all events this statement cannot, by a wave of the hand,
change legislation or create rights from nothing. And it can be said that the law would only
apply to non-Bedouin residents of the Negev. The Law is not confined to specific persons, it
applies to everyone, Bedouin, Jews, and all the others who were living in the country at that
time.
Furthermore, this argument does not adequately reflect the reality on the ground, because the
Plaintiffs' families, when they entered into agreements for the acquisition of land, were aware
of the necessity of registration of the rights in their name in Tabu. Thus, in P/13, the alleged
sale agreement in respect of the plot "Araqib 2" parcel, a declaration appears in Section 4 of
the Agreement to the effect that "the first party hereby undertakes to attend the Tabu
and Land Administration Offices for the purpose of certification and proof that these
lands are lands to which the second party has title and is able to do with them as he
wishes". The purpose of registration is two-fold; to establish a basis showing that the seller is
empowered to sell the land, and also that in the future, the purchaser who has been registered
in the Land Registry can show evidence of his title. It just so happens that this agreement
amounts to a repudiation of the Plaintiffs' contentions that they had obtained complete
autonomy in dealing with the lands and were exempt from registration. This declaration
undermines the Plaintiffs' arguments as to the independent existence of Bedouin Law
unrelated to the decisions and laws enacted by the sovereign authority and illustrates the need
for the parties to obtain a statutory seal of approval in the usually accepted manner and in
accordance with the applicable law, namely registration in Tabu, this superseding the
religious laws and common custom prevalent in the Bedouin Sector.
The witness Nuri El Uqbi testified that there was no prevention to registration in Tabu but
people did not wish to do so (Court Record December 7, Page 96, Lines 2-3). It can be
concluded from this that registration was not made, not because of Bedouin autonomy but
because of a lack of desire on the part of the persons concerned. I would describe this as
somewhat strange reason, if there was nothing to prevent registration and if they did not wish
to register due to unwillingness, then why does such an express section appear in the
Agreement. It is important to note that during the relevant period there was a Tabu Office in
Be'er-Sheva (Duchan Page 370) and it would have been possible to register the transaction.
Furthermore, it was provided in the Elhawashleh Judgment that in so far as there were no
Tabu Offices in Be'er-Sheva it would be necessary to apply to a Tabu Office elsewhere (Page
151 of the Judgment).
32.
As proof of possession of land the Limitation Law, 5718-1958 is conclusive (hereinafter:
"the Limitation Law" ) and it is provided as follows in Section 22 thereof: "In Articles 20
and 78 of the Ottoman Land Code, the period fixed therein shall be replaced by a
period of 15 years, and in respect of land registered in the Land Register after
settlement of title under the Land (Settlement of Title) Ordinance, by a period of 25
years; however in the case of a person who came into possession of any land after the
24
24th Adar Alef, 5713 (March 1, 1943), the 5 years beginning on the day of coming into
force of this law shall not be taken into account in calculating that period. The reference
in Article 20 of the said Code to the legal causes for the interruption of the period of
limitation shall be superseded by the provisions of this Law regarding the calculation of
the period of prescription".
Section 22 of the Limitation Law extended the limitation period from 10 to 15 years. It was
further provided that in cases in which possession commenced after 1943, the limitation
period is extended for a further 5 years (in this regard see the article written by Sandy Kedar,
"Time of Majority, Time of minority; Land, Nationality and Limitation Laws Applicable in
Israel ", Iyuni Mishpat 25 (5758) 665).
What is the implication of the foregoing on the case in question.
The Plaintiffs claim to have been expelled from their lands in 1951. Accordingly, they are
under an obligation to prove that they had been cultivating the land 15 years prior to 1943
and if they have not proven this then it will not be possible for them to prove possession and
cultivation after 1943, as they have not met the requirement of proof of 20 years in light of
their expulsion in 1951, which severs the continuity.
Ben Yosef's expert opinion on behalf of the Plaintiffs, which was based on aerial
photographs from the period of the Mandate and which documents agricultural and cultivated
areas, is relevant to 1945, and does not therefore contribute to proof of the Plaintiffs' claims
which have to meet the burden of proof of 15 years prior to 1943.
The Plaintiffs produced documents that are evidence of payment of taxes to the Authorities,
Exhibit P/20, which is a receipt for the payment of Tithe Tax in 1950, Tithe Payment
Certificates (Appendices 31-32 to the Plaintiffs' file of exhibits) of 1937 and many other
documents that are mostly relevant to the years following 1943 and prior to 1951, the year in
which the Plaintiffs' claim to have been expelled from their lands. These documents are not
evidence of continued possession and cultivation for a period of 15 years as is required. In
order to meet the onus of proof imposed on the Plaintiffs it was incumbent upon them to
show a solid and continuous basis of evidence with regard to the whole of the claimed plots,
and there is nothing of this nature in the evidence before me.
Payment of taxes as evidence of title to or possession of land has been ruled out in the
decided cases, as evidence of title is in dispute between a person and the State and possession
of land cannot be proven by proof of payments of taxes (see the Elhawashleh Judgment, Page
154, Section 8 and the references cited ibid).
Thus it is also stated in the book written by M. Duchan, Land Law in the State of Israel,
Second Edition, 5713: "Tithe was the tax payable for the use of land. The Tithe
constituted the share of the State in the yield from the land... the Tithe is not a Land
Tax but rather a tax on the yield of crops from the soil: where a person has been
cultivating the land - he pays tax from the crop..."(Page 429, Paragraph 2).
33.
Not only have the Plaintiffs' failed to prove title to the land and cultivation of the land by
them, but neither have they proved a basis by virtue of which they claim their rights of title
arose, as they have not proved the chain of title or registration in the name of the party that
transferred the rights of title to them. Neither have the boundaries of the land been proven
and certainly not as accords with the map, and the Plaintiffs have chosen to ignore this in
their closing arguments.
25
Even if the agreements are binding on the parties, there is nothing in them that binds the
authorities and for the granting of rights where these do not exist, because the condition of
proof of title is registration of the transaction in Tabu (Duchan, Pages 144, 145, 368).
Regarding Araqib 60 - it was claimed that the plot was acquired in 1946 from Farih Suleiman
El Uqbi Sabihat. The basis of the seller's title to the land was not proven. In court, Mr. Nuri
El Uqbi testified that the rights originate in a collateral (Court Record December 7, Pages 98100). However, a collateral of rights does not necessarily indicate title and no basis of
evidence was adduced as to by virtue of what the collateral right arose.
Araqib 6 - in the Pleadings of June 22, 2008 and in the Memorandum of Claim it was alleged
that the Plot was acquired from Salameh El Qubi in 1945. Mr. Nuri El Uqbi referred to a
collateral Agreement (Court Record December 7, Pages 100-103). It was not proven that the
collateral agreement does indeed relate to this land and neither was it proven that the
mortgagor had rights that could be transferred or mortgaged.
Thus for example in Appendix 18 to the Plaintiffs' Exhibits the period of the collateral is only
3 years, so how does this collateral become title, plus the fact that the basis on which that
person could mortgage his rights was not proved.
Sharia 133 - it was claimed that was acquired in 1945 from Haj Muhamed El Uqab. It was
not proven that the seller had title to the land.
Sharia 134 - it was claimed that the Plaintiff inherited this plot from his mother but no
Succession Order was produced nor were the mother's rights proven.
It should be noted that the transferors of the rights in Araqib 60, Araqib 6 and Sharia 133 are
absentees.
34.
Another argument raised by the Plaintiffs concerns indigenousness and transitional justice.
This issue which is of great importance and commanding the utmost respect, is a matter of
policy which must be dealt with by the legislator and at the present time the legislation in
Israel does not recognize title rights based on indigenousness. Besides which the El- Uqbi
tribe arrived to the country when the Ottoman Authorities already ruled the country (Expert
Opinion of Professor Yiftachel that the El-Uqbi Tribe arrived in the Negev about 200 years
ago (Page 11 of the Opinion), as opposed to the minorities to whom the Plaintiffs refer,
where foreign rule was established, after their arrival.
Sharia 132 in Case File 5278/08
35.
The findings in the Judgment also apply to Sharia 132. All that remains for discussion in
relation to Sharia 132 is the existence of the Sale Agreement which was submitted and
marked P/1 (the translation of the document was submitted and is marked P/2).
The Plaintiffs argue that the Sale Agreement is evidence of the acquisition of the plot by the
deceased from his grandfather.
There is a contradiction as to the year of the alleged acquisition, in the Memorandum of
Claim stated 1945 (Memorandum 2686, Section 3 where under the acquisition date "1945" is
stated in Arabic), whereas the Plaintiff Hassan (Nuri) Suleiman El Uqbi testified that the
deceased, his father, had acquired the plot in 1935 but that from 1930 he had an agreement
with his grandfather with regard to cultivation of the plot (Court Record October 31, 2010
Page 8). When he was asked about the contradiction he testified that "it could be that the
Settlement Officer heard 45 and not 35, perhaps the Settlement Officer made a mistake
and I have a document that speaks for itself. Q. Could there be another agreement from
26
1945? A. There is a 1930 Agreement about cultivating the Plot. Q. This Agreement was
not submitted? A. We submitted in the second case file because the agreement includes
El Araqib as well as Zahliqa". (Page 8, Lines 6-11).
The Sale Agreement submitted as P/1 is the original document and there is no dispute about
this. However, as original and credible as it may be, nothing by virtue of the document
testifies to possession and title under the law that applied at that time, as has been detailed
above. There is nothing in the agreement between the deceased, the father of the Plaintiffs
and the grandfather of the Plaintiffs that could form a basis for the chain of title rights alleged
in respect of the plot and as previously stated, no Tabu Deed was in the possession of the
Plaintiffs as proof of their rights of title to the land.
In addition, in Section 4 of the Sale Agreement (see Section 4 of the translation in Exhibit
P/2), it was provided that: "the first party is committed to applying to and transferring in
the Tabu Office and for registration in the name of the second party and in the event
that he is prevented from or is late in doing so he shall be obliged to pay him a fine..."
The Plaintiff, Hassan (Nuri) Suleiman El Uqbi was asked in his testimony about the
aforementioned Section 4: "Q. You will agree with me that according to Section 4 of the
Contract there was a binding obligation to transfer the registration in the Tabu Offices.
A. I do not know whether this was done or not but I know that such documents are
made and this is always written in order to assure the rights and I do not know whether
or not it was registered in Tabu" (Court Record October 31, 2010, Page 13, Lines 22-24).
The purpose of registration, also according to what Mr. El Uqbi says, is intended to assure
the rights and the conclusion to be drawn from this is that non-registration would indicate an
absence of rights.
36.
In conclusion, the claims are dismissed.
Expropriation of the land was duly carried out in accordance with the Acquisition Law and
the Plaintiffs have not succeeded in proving their claims in relation to title to the plots that
are the subject matter of the claim.
The result is that the land known as Blocks 400367, 400371 and 400369 are to be registered
in the name of the Development Authority, whereas the land known as Blocks 400526 and
400527 are to be registered in the name of the State of Israel. The Plaintiffs are to pay the
costs of the action and Attorney's professional fees in the amount of NIS 50,000 as of today's
date.
As I have indicated in the Judgment, it is a pity that the Plaintiffs rejected outright the offer
made by the State for the grant of compensation and I hope that they will ultimately change
their position.
I have delayed writing the Judgment in light of the Government decision regarding a scheme
for regularization of Bedouin settlement in the Negev, in the hope that the parties would
reach a settlement, and as nothing was done and I understood that there is no reason for
waiting any longer, the Judgment has been signed.
Given this 21st of Adar 5772, March 15, 2012, in the absence of the parties.
(-)
____________________________________
Sarah Dovrat, Judge
Vice President.