Case Number

HCJ 2390/96 , HCJ 360/97 , HCJ 1947/97

Date Decided

2-13-2001

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: In the late 1950’s the army needed training area and for this purpose the authorities worked to expropriate a range of about 137 dunam of land in the region of Hadera in accordance with the Lands Ordinance (Purchase for Public Purposes) 1943. After a number of years – on 24 March 1966 – and according to his authority in section 19 of the Expropriations Ordinance, the Minister of Finance published a notice as to the granting of the land to the State and the land was registered in the land registration books in the name of the State.

The petitioners before us – in the three petitions that were heard as one are the heirs of the land owners of land in the area of the expropriation prior to the expropriations. The same owners acquired the lands that they purchased in the mid 1940’s. From the time of the expropriation and until the date of the petition the petitioners and their successors refused to accept compensation from the State in exchange for the lands that were expropriated from them

The expropriated land has served its designation as to the expropriation for about three decades, from when the land was expropriated until 1996.

In a meeting from August 31, 1993, finding that there was demand in the area for residential construction, the government decided to clear out of army from the area. For this purpose an agreement was signed between the army and the Israel Lands Authority to clear this land and (additional land).

The appellants claim that once the public need for which the land was expropriated has ended it is incumbent upon the State to return the property to its owners, contact those from whom the asset was taken, him and their heirs. The property right of the owners obligates the expropriating authority to limit the harm to the property of the individual only for the public purpose for which the land was expropriated. Once that public purpose is accomplished, the property is to be returned to its original owners. In our matter: the land was expropriated for use for army training; now, when that public purpose no longer exists, the land is to be returned. As for the new designation of the land for residential building the petitioners have two arguments: one that this purpose is not a public purpose at all and second, even if residential building is a public purpose, there is nothing to prevent the petitioners from accomplishing it and themselves implementing the construction project. The petitioners therefore sought for the State to return the land to their possession, or at the very least, to compensate them at the present value of the land and not at its value when it was expropriated.

The State responded to the arguments of the petitioners, by arguing that all that has occurred was the replacement of one public purpose with another public purpose and the land did not need to be returned to its original owners. The State also made the claim that the petition should be delayed due to delay in its filing.

Held: The judges while varying in their approaches which led to the result were in agreement that if the public purpose which served as the basis for expropriation of lands according to the Lands Ordinance (Purchase for Public Purposes), 1943, ceased to exist, as a rule, the expropriation is to be cancelled, and the owner of the expropriated lands is entitled to the return of the lands subject to exceptions and rules that are to be formulated. Some of the differences between the judges revolved around the role of the Basic Law: Human Dignity and Liberty in bringing about this legal rule. The judges also called on the legislator to regulate the matter of expropriation of lands against the background of what has been said in this judgment. Finally, the Court did not decide the question of the applicability of the new legal rule to the present matter, but decided to take a break and ask the parties to argue before the Court as to the applicability of the new legal rule in the present petitions, leaving this to be decided after the parties’ arguments are heard. The claim of delay was rejected.

Keywords

Administrative Law, Constitutional Law -- Basic Law: Human Dignity and Liberty, Constitutional Law -- Legislation, Constitutional Law -- Property Rights, Property

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