Case Number

HCJ 5/48

Date Decided

10-19-1948

Decision Type

Original

Document Type

Full Opinion

Abstract

The Law and Administration Ordinance 1948, provides that the law which existed in Palestine on May 14, 1948, "shall remain in force... subject to such modifications as may result from the establishment of the State and its authorities".

The Acting District Commissioner of Tel Aviv, as the competent authority under the Defence Regulations of 1939, made pursuant to the (English) Emergency Powers (Defence) Act 1939, requisitioned a flat situated at no. 3, Chen Boulevard, Tel Aviv, by order dated 6 September 1948. The requisition was for the benefit of the Attorney-General who, previously to his then recent appointment to that office, had resided in Haifa, but who upon such appointment found it necessary to reside in Tel Aviv, where he had been unable to find a suitable flat.

Objections to the order were made by the landlord of the flat and an incoming tenant, and were based mainly on the grounds that (a) the Regulations under which the order was made had never been in force in Palestine, or if ever in force, that their validity had expired upon the establishment of the State of Israel, (b) the competent authority was never legally appointed as such; and that in any event he had exceeded his authority and had acted capriciously, in bad faith and without due regard to the principles of reason and justice.

Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

(1) The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

(2) The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

Keywords

Administrative Law -- Competent authority, Administrative Law -- Discretion, Administrative Law -- Judicial review, Constitutional Law -- Judicial Review, Constitutional Law -- Legislation, Constitutional Law -- Property Rights, Constitutional Law -- Separation of Powers, Constitutional Law -- State of Emergency and National Security

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