Case Number

P.C.A. 3094/11

Date Decided

5-5-2015

Decision Type

Appellate

Document Type

Full Opinion

Abstract

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

An Application for Permission to Appeal, which was adjudicated as an appeal, on a decision to grant the Respondent's motions to evict the Applicants from the land it owns in the northern Negev. Background: The Applicants belong to a Bedouin tribe that has been residing in the area in dispute for approximately 60 years. In the framework of the proceedings in the lower instances, it was discovered that the Applications are licensees and not trespassers, who settled on the location following instructions of the State, and that the State duly revoked the license. The majority of the members of the tribe moved to a regulated Bedouin town (Hura), and those who remained, including the Applicants, are being required to evacuate their houses, while being offered to move to Hura; as part of the overall solution that the authorities have formulated, and as part of a scheme to establish Hiran – an urban community town, with a general character, on the location.

The Supreme Court rejected the appeal by a majority of opinions (by Deputy President E. Rubinstein, with the concurrence of Justice Hendel, and against the dissenting opinion of Justice D. Barak-Erez) on the following grounds:

Permission of appeal was granted because of the issue at the background of the Application, which concerns the settlement of the dispersed Bedouin population on State lands in the Negev. This is a matter of public sensitivity and importance, which government authorities and Israeli society have frequently been dealing with for decades. However, it was emphasized that the ruling is limited to this case.

On the merits of the appeal, the majority opinion was that on the legal level the Applicants' arguments should not be accepted on the following grounds:

First, because the arguments that are at the core of the Application concern planning aspects (arguments that are directed against the planning of the town of Hiran, and more broadly – through such planning objections – against the government decision to establish the town of Hiran, and its policy in the matter of the regulation of Bedouin settlement in the Negev) – these arguments constitute an indirect challenge of the decisions of the authorities, which the Applicants should have raised in a direct challenge in other procedural frameworks, and they do not belong in the framework of their defense against the eviction motion filed by the Respondent.

Inter alia, it was emphasized that the Applicants' arguments are not "denied in limine" merely because their contents are administrative and constitutional, since the mere fact that a certain argument bears an administrative or constitutional nature is not enough to determine that it does not at all belong in a civil proceeding. It is definitely possible that there will be a situation in which such arguments will be raised in an "organic" manner – without belonging to another specific procedure – in the framework of proceedings that, by their nature, are civil and not administrative-constitutional, particularly in legal relationships between the individual and the authority.

Second, and beyond the necessary, the Court addressed the Applicants' constitutional and administrative arguments, and held that in this case it cannot be said that the Respondent did not act in a reasonable and proportional manner, and in a way that ultimately does not amount to a violation of the rights of the Applicants, despite their allegations in this matter. The question of the reasonableness of the decision to evict the Applicants was examined while emphasizing two considerations: the policy relating to the regulation of Bedouin settlement in the Negev, and the fact that the eviction of the Applicants does not leave them in a hopeless situation. They may move to the town of Hura, at the beneficial terms and conditions that were prescribed, and this pulls the rug from under the claim of infringement of right to property; Alternatively, the Applicants, just as any other citizen, may purchase a lot in the town of Hiran, when it will be established, in accordance with the terms that apply to everyone. With regard to this option, the Court suggests that the Respondent consider granting a certain benefit to proven licensees in the marketing tenders;

Justice D. Barak-Erez, in a dissenting opinion, believes that considering the special characteristics of the case – once it became clear that the Applicants are licensees and not trespassers, who settled on the location in accordance with the State's instructions, the authorities were obligated to exercise renewed discretion regarding the format of the eviction and the compensation that will be granted to the residents in the framework of the eviction proceedings, and since this was not done – the State should be instructed to reconsider the compensation that is to be granted to the Applicants in the framework of the eviction proceedings, while examining the possibility of preserving their linkage to their residential environment.

Keywords

Administrative Law -- Discretion, Property

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