Jerusalem: Land Title Settlement and Expropriation

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Acknowledgments

This article was previously published in Hebrew in Ha-Mishpat, No. 14 (July 2002), pp. 51–8. I am grateful to the editors of Ha-Mishpat and the participants in the Workshop on Law and History at the Faculty of Law, Tel Aviv University, for their useful comments. The research was supported by a grant from the Research Foundation of the School of Law, the College of Management Academic Studies.

Abbreviations:

HCJ — Higher Court of Justice.

KT — Kovetz ha-Takanot, Subsidiary Legislation.

PD — Piskei Din (Judgments), Law reports of the Israeli Supreme Court since 1948.

PM — Psakim Mehoziim, Law Reports of the District Courts since 1949.

SH — Sefer ha-Hukim, Principal Legislation of the Knesset, the Israeli Parliament.

YP — Yalkut ha-Pirsumim, Government Notices.

Notes

 1 Official Gazette, 1 June 1928, p. 258 (Hebrew), p. 260 (English).

 2 As defined today in Regulation 6 of the Land Regulations (Procedure and Registration) 5730-1969.

 3 Haim Sandberg, Hesder zekhuyot be-mekarke'in be-Eretz-Yisrael uvi-Medinat Yisrael (Land Title Settlement in the Land of Israel and in the State of Israel) (Jerusalem, 2000), pp. 169–71.

 4 Ibid., p. 335; Dov Gavish, Karka u-mapah: Me-hesder karka'ot le-mapat Eretz Yisrael, 1920–1948 (Land and Map: From Land Settlement to Maps of the Land of Israel, 1920–1948) (Jerusalem, 1991), p. 202 and fn. 295.

 5 Sandberg, Hesder zekhuyot, p. 228.

 6 Ibid., pp. 31ff.; see also p. 228.

 7 The British concern about agitation was one of the lessons learned from the settlement of the Jiftlich Beit-She'an land at the beginning of the 1920s, when the Arab cultivators of this agricultural land rioted against the government intention to settle the title and register it in the name of the government. See ibid. pp. 175 n.38, 195 and 213.

 8 Ibid., p. 335.

 9 Ibid., p. 345.

11 Letter from the director of the Land Registration Department in the Ministry of Justice, Benjamin Fishman, to the minister of justice, 12 September 1948, titled: “Land Settlement Department,” Israel State Archives (hereafter ISA), section 74, box 5733/C, file 3520/1, p. 3.

10 For a description of the UN position on Jerusalem from the partition resolution to the 1950s, see Moshe Hirsch and Devora Hausen-Curiel, Yerushalayim le'an? Hatza'ot bi-dvar atidah shel Yerushalayim (Whither Jerusalem? Proposals on the Future of Jerusalem) (Jerusalem, 1994), pp. 3ff.

12 Letter from Matityahu Yitzhaki to the Division Head, 7 October 1955, ISA, section 74, box 5733/C, file 3520/3.

13 Circular No 34/53 from the head of the Land Registration and Settlement Division in the Ministry of Justice, 16 December 1953, titled: “Work Plan for the year 1954/1955,” ISA, section 74, box 5733/C, file 3520/2.

14 See Arnon Golan, “Plitim, olim, shkhunot netushot” (Refugees, Immigrants, Abandoned Neighborhoods), in Avi Bareli (ed.), Yerushalayim ha-hatzuyah, 1948–1967 (Divided Jerusalem, 1948–1967) (Jerusalem, 1994), pp. 69, 84.

15 See letter from Matityahu Yitzhaki, 7 October 1955 (n. 12 above).

16 Letter from Matityahu Yitzhaki to the head of the Land Registration and Settlement Division, 4 April 1961; letter from Yosef Kukiya, director general of the Ministry of Justice, to the mayor of Jerusalem, 11 April 1961; letter from the director of the Department of Surveys to the director general of the Ministry of Justice, 28 April 1961; letter from Matityahu Yitzhaki to the director general of the Ministry of Justice, 3 December 1961, ISA, section 74, box 5733/C, file 3520/9.

17 Letter from Matityahu Yitzhaki to the Division head, 4 April 1961, ISA, section 74, box 5733/C, file 3520/8.

18 The list of neighborhoods where title settlement was implemented by 1961 included: Romema, Makor Baruch (part), Givat Sha'ul A, Kiryat Moshe, Beit ha-Kerem, Ha-Kiryah, the University, Bayit Vagan, Mt. Herzl, Kerem Avraham, Tel Arza, Mahanayim, Sanhedriya and Shikun Paji, Rehavya (part), the Bukhari neighborhood, Katamons A–F, the Greek Colony, Bak'a (part), Kiryat Shmuel, Elyashar, Givat Mordehai, Merhavya, Talpiyot, Ramat Rahel, Kiryat ha-Yovel, Yefe Nof, Sha'arei Yerushalayim, Beit Ya'akov (part), Etz Haim, School for the Blind, Har ha-Menuhot, Upper Lifta, David Yellin, Mitzpeh Nof, the Yad Vashem and Har ha-Zikaron (Mount of Remembrance) area, Shikun Rassco, Givat Oren, Givat ha-Nasi and Binyanei ha-Umah, the Valley of the Cross and Ha-Mekasher. Ibid.

19 Summarizing the land title settlement operations in urban regions in 1959, the Title Settlement Official for the Jerusalem area and southern region stated: “I must comment that all the areas subject to title settlement in my region are urban, and should not be measured with the same scale as the rural areas, i e. as a large number of dunams. Sometimes, the settlement of a complex urban block requires no less work than an entire village. An urban block sometimes requires months of work due to the multiplicity of complex records and the many parcels therein that were entered under the Apartment Houses Law… Therefore, there is a great deal of work on title settlement in urban blocks, and a single urban block often requires the same amount of survey work on the ground and in the office as for 10–15 blocks in a village in Galilee.” Letter from Matityahu Yitzhaki to the head of the Land Title Registration and Settlement Division, 19 November 1959, concerning “summary of the title settlement situation in the Jerusalem and Southern Regions,” ISA, section 74, box 5733/C, file 3520/7.

20 See Yosef Shavid, “Hitpatehutah ha-orbanit veha-adrikhalit shel Yerushalayim” (The Urban and Architectural Development of Jerusalem), in Bareli (ed.), Yerushalayim ha-hatzuyah, pp. 115, 117.

21 See, for example, in the northern neighborhood of Shu'afat, Motion (Jlm ) 627/72, Abu Nia v. Mizrahi, PM 5734(1), pp. 507, 508.

22 See Trans-Jordan, Department of Lands & Surveys, Annual Report 1941 (Amman, 1942), pp. 3–4, ISA, Mandate Government Publications, box 4398, file 608/3/1.

23 See, Eyal Zamir Admot ha-medinah bi-Yehudah ve-Shomron: Skirah mishpatit (State Land in Judea and Samaria: A Legal Review) (Jerusalem, 1985), p. 26 and fn. 171. For a translation of the law into Hebrew, see Abraham Sochovolsky, Eliyahu Cohen and Avi Erlich, Yehudah ve-Shomron: Zekhuyot be-mekarke'in veha-din be-Yisrael (Judea and Samaria: Land Title and Israeli Law) (Jerusalem, 1986), pp. 101ff.

24 The areas included in the territory of the State of Israel were listed in the Rule and Justice Order (No.1) 5726-1967, KT, 28 June 1967, p. 2690, issued under Section 11B of the Rule and Justice Ordinance 5708-1948, as amended in the Law Amending the Rule and Justice Ordinance (No. 11) 5727-1967, SH, 28 June 1967, p. 74.

25 See Section 11B of the Rule and Justice Ordinance, 5708-1948, and see also HCJ 171/68, Hanzalis v. the Greek-Orthodox Patriarchal Court, PD 23(1), pp. 260, 269; HCJ 223/67, Ben-Dov v. the Minister of Religions, PD 22(1), pp. 440, 441-2; HCJ 283/69, Hidi v. the Military Court, Hebron District, PD 24(2), pp. 419, 422-3; HCJ 256/01, Rabah v. the Court for Local Affairs PD 56 (2), p. 930. The annexation to the municipal territory was set forth in the Jerusalem Decree (Expansion of the Municipal Territory) 5727-1967, KT, 28 June 1967, p. 2694, pursuant to Section 318 of the Municipalities Ordinance (New Version) as amended on 27 June 1967. See also Section 5 of the Basic Law: Jerusalem, Capital of Israel. The Jerusalem District was declared a land title settlement area before 1967. The annexed area was included in the Jerusalem District on the basis of the announcement of the division of state lands into regions and districts and the descriptions of their boundaries, according to the Rule and Justice Ordinance 5708-1948, YP, 28 June 1967, p. 1737.

26 See Motion (Jlm) 1856/73, Yitzhaki v Abu-Hamda, PM 5736(1), pp. 477, 481; Civil Appeal 51/89, 52, The General Custodian v. Abu Hamda, PD 46(1), pp. 491, 496 (hereafter Abu Hamda). The concept of continuity can also be supported by the rationale of the finality of foreign judgments. See Celia Wasserstein Fassberg “Al sofiyut bi-psakim zarim” (On the Finality of Foreign Judgments), Mishpatim, Vol. 18 (1988), p. 35.

27 Section 25 of the Law and Administration Procedures Law (Combined Version), 5730-1970, and Regulation 19 of the Law and Administration Procedures Regulations (Continuity of Civil Proceedings, Enforcement of Rulings and Recognition of Documents) 5729-1969, enacted thereunder, stipulates: “A document given or approved, at any time prior to the effective date (7 June 1967) by a public employee or a public office, which was valid in the applicable territory, shall be considered a document given or approved, in that same matter and with the same validity, by a public employee or public office in Israel.”

28 Sundry Applications 110/73, El-Alami v. El-Alami, PD 29(1), p. 17.

29 Fassberg, “Al sofiyut bi-psakim zarim,” p. 52.

30 See Eyal Zamir and Eyal Benvenisti, “Admot ha-yehudim” be-Yehudah, Shomron, Hevel Azah ve-mizrah Yerushalayim (The Legal Status of Lands Acquired by Israelis before 1948 in the West Bank, Gaza Strip and East Jerusalem) (Jerusalem, 1993), pp. 35, 39, 56–7; See also review of this book by Pli'ah Albek, Mishpatim, Vol. 24 (1994), pp. 293, 299.

31 For an example of the delay caused by this difficulty, see Summary Motion (Jlm) 3/87, Aharonson Foundation Ltd v. Nawas, Takdin — District Court Precedents 1991(4), pp. 277, 279–80 (hereafter Aharonson Foundation Affair).

32 Regulation 20(a)(1) of the Law and Administration Procedures Regulations (Continuity of Civil Procedures, Enforcement of Rulings and Recognition of Documents) 5729-1968.

33 According to the Land Regulations (Emergency Directive) 5727-1967, (KT 3184), it is customary, with respect to records originating in Jordan, to include a note that title entered according to the Jordanian registers (the “Interim Registers”) is subject to examination pursuant to the Regulations (i.e. comparison with previous records). Usually, the argument of contradiction was made against contradictory entries in the Jordanian Deeds Registers. See Civil Appeal 805/79, Estate of the Late Algol v. the HABAD Kolel in Jerusalem, PD 38(1), pp. 57, 67; Civil Appeal 331/92, Aharonson Foundation Ltd. v. Na'was, Takdin — Supreme Court Precedents 1993(3), pp. 1819, 1821 (hereafter Aharonson Foundation Civil Appeal); Aharonson Foundation Affair, p. 287; Civil File (Jlm) 133/87, the JNF v. Alabassi, Takdin — District Court Precedents 1992(1), p. 1521.

36 Aharonson Foundation Civil Appeal, par 5 in the ruling handed down by Justice Shamgar. The history of this land was described by the District Court in Aharonson Foundation Affair, par. 2 in the ruling of Justice Bazak.

34 Abu Hamda, p. 502.

35 Civil Appeal 602/82, Abu-Nia v. Mendelbaum, PD 37(3), pp. 281,290.

37 Abu Hamda, pp 494–5, 497. The parcel in question is in block 30586, on the eastern slopes of the Neveh Ya'akov neighborhood.

39 Motion (Jlm) 1967/72, Anglo Palestine Construction Ltd v. Akel, PM 5734(1), p. 514. See also Albek, book review.

38 In fact, in Abu Hamda, a general precedent was established with respect to the possibility of amending the title settlement in the case of absence of representation Ibid., pp. 497, 502. See also Sandberg, Hesder zekhuyot, p. 297.

40 Summary Motion (Jlm) 2/72 The Custodian of Absentee-Owned Property v. The Title Settlement Official, PM 79, p. 135.

41 Inter alia, 3,345 dunams were expropriated in January 1968 in the vicinity of Mt. Scopus (French Hill), 2,549 dunams in the region of Kikar Tzahal (Mammila) and 485 dunams in the Shmuel ha-Navi region (Ma'alot Dafna), YP, 11 January 1968, pp. 687–8; in April 1968, 116 dunams were expropriated inside the Old City walls (the Jewish Quarter), YP, 18 April 1968, p. 1238; in August 1970, about 12,000 dunams were expropriated throughout the city, including 470 dunams in Neveh Ya'akov, 4,840 dunams in northwest Jerusalem (Ramot), 2,240 dunams in southeast Jerusalem (Talpiyot East, the High Commissioner's Residence), 2,700 dunams in southwest Jerusalem (Gilo), 1,200 dunams in Kalandiya (Atarot), 230 dunams west of the Western Wall of the Old City (from Kikar Tzahal to the Ben-Hinnom Valley), 600 dunams in the Ramat Rahel region, YP, 30 August 1970, p. 2808; in March 1980, approximately 4,400 dunams were expropriated in north Jerusalem (Pisgat Ze'ev), YP, 20 March 1980, p. 1305; in 1991, 1,850 dunams were expropriated in Har Homa, YP, 16 May 1991, p. 2479; in May 1994, 1,230 dunams were expropriated for the purpose of paving highway No. 1, YP, 26 May 1994, p. 3493. See also Opening Motion (Jlm) 0402/95 Planning and Construction Committee, Jerusalem v. Nabulsi Takdin — District Court Precedents 1998(3), p. 1802, par. 2.

42 From the content of the government resolution on the issue, as summarized in HCJ 147/74, Spolinsky v. Minister of Finance, PD 29(1), pp. 421, 422 (hereafter Spolinsky).

43 This was in contradiction to the policy of the title settlement procedure in the Galilee in the 1950s and 1960s See Sandberg, Hesder zekhuyot, p. 295.

44 See, for example, Irit Haviv-Segal “Be'ayot te'um ve-she'elat ha-matarah ha-tziburit be-hafka'at mekarke'in” (Problems of Coordination and the Question of Public Objective in Land Expropriation), Iyunei Mishpat, Vol. 21 (1998), p. 449; Hanoch Dagan, “Shikulim halukatiim be-dinei netilah shiltonit shel mekarke'in” (Distribution Considerations in Laws concerning Governmental Land Seizure), ibid., p. 491.

45 Spolinsky; HCJ 307/82, Lubianker v. Minister of Finance, PD 37(2), p. 141 (hereafter Lubianker); App. HCJ 4466/94, Nusseiba v. Minister of Finance, PD 49(4), p. 68 (hereafter Nusseiba); HCJ 3956/92, Makor Share Issues and Rights Ltd. v. the Prime Minister Takdin — Supreme Court Precedents 1994(4), p. 429 (hereafter Makor).

46 See, e g. Spolinsky, p. 423; Lubianker, p. 148.

47 For a similar theory concerning the existence of a covert relationship between the Supreme Court's rulings on land expropriation for construction for immigrants in the 1950s and the broad consensus on the vital need to absorb the immigrants, see Yifaat Holtzman-Gazit, “Dinei hafka'at karka'ot be-re'i ha-idiologiyah ha-tziyonit shel klitat aliyah ve-kinyan prati” (Land Expropriation Laws in the 50s Reflected in the Zionist Ideology of Immigrant Absorption and Private Property), in Hanoch Dagan (ed.), Mekarke'in be-Eretz Yisrael: Bein ha-prati la-tziburi (Land in Israel: Between the Private and the Public) (Tel Aviv, 2000), pp. 223, 227. See also Yifaat Holtzman-Gazit, “Ma'avak ha-karka'ot be-Eretz Yisrael: Hashlakhot le-inyan heikef ha-bikoret ha-shiputit al hafka'at karka'ot ba-migzar ha-yehudi — nituah histori” (The Land Struggle in the Land of Israel: Ramifications with Respect to the Extent of Judicial Criticism of Land Expropriation in the Jewish Sector — a Historical Analysis,” in Shalom Lerner and Daphna Lewinsohn-Zamir (eds.), Sefer Weisman: Mehkarei mishpat li-khvodo shel Yehoshua Weisman (Essays in Honor of Joshua Weisman) (Jerusalem, 2002), pp. 73, 99–101, 110–12.

48 Nusseiba, p. 80, citing Justice Berenson in HCJ 412/74, Flesher v. Minister of Finance (unpublished) (emphasis added).

49 SH 1994, p. 90.

50 Nusseiba, p. 93, refers to the detailed reasoning in HCJ 5091/91, Nusseiba v. Minister of Finance Takdin — Supreme Court Precedents 1994(3), p. 1765.

51 Nusseiba, p. 78 of the ruling by Justice Matza, and see similar expressions on p. 90 of the ruling by Justice Dorner: “Construction of a commercial building in itself is a matter for market forces, and it does not constitute a public need justifying expropriation.”

52 Makor, p. 484, par. 8.

53 Ibid., p. 485.

54 HCJ 2390/96, Krassik v The State of Israel, PD 55(2), p. 625. The case dealt with expropriation in the vicinity of Hadera.

56 HCJ 5601/94, Abu Tir v. the Prime Minister Takdin — Supreme Court Precedents 1994(4), p. 246.

55 Thus, for example, in Lubianker, dealing with the expropriation of land in Pisgat Ze'ev, the court was told that out of the 4,400 dunams that were expropriated, about 1,500 dunams were owned by 630 Jewish owners, and about 2,900 dunams, by 2,872 Arabs (p. 149).

57 Ibid.

58 HCJ 6698/95, Ka'dan v. the Israel Land Administration, PD 54(1), p. 258. The Supreme Court (Chief Justice Barak) ruled there that: “In actual fact, there is no application to establish a community settlement for Arabs only. In fact, the State of Israel allocates land for none but Jewish community settlements… The effect of the separation policy presently practiced is discriminatory, even if the motive for the separation is not. The existence of the discrimination is determined, inter alia, according to the effect of the decision or the policy, and this effect, in our case, is discriminatory… Accordingly, the Administration's present policy actually gives the Arabs separate but unequal treatment” (pp. 279–80).

59 This activity was partly revealed by documents discovered at the Orient House after it was closed down, as reported at a press conference held by former Minister of Internal Security Uzi Landau. See Yoav Yitzhak, “Mismakhim she-nitfesu: Arafat isher tashlumim le-Aatif Aabayat she-asak be-harigat yisraelim” (Documents Seized: Arafat Approved Payments to Ataf Abayat, Who Engaged in Killing Israelis), Hadshot Mahlakah Rishonah (Internet edition), 11 April 2002, at http://www.nfc.co.il/search, .asp?txtSearch=%F2%E0%E8% F3&opSearch=2&x=10&y=7 (accessed on 27 May 2002).

60 On 2 June 2001, the directors of the Israel Land Administration decided to accept an application on behalf of the Jewish Quarter Reconstruction and Development Company Ltd to allocate NIS 500,000 for locating state property adjacent to the Quarter, including surveying and registering properties in the name of the Administration. According to the former director general of the Administration, Shlomo Bar-Eliyahu, the Administration decided to acquiesce to the request and to commence the work of locating properties, registering them in the name of the Administration, and even marketing them via tender. Furthermore, he noted that: “From now on, there will be no difference between Administration activities in Lod, Ramle, Karmiel or the Old City of Jerusalem.” Dalya Tal, “Ha-mimshal yashuv lifol be-galui ba-rovah ha-yehudi shel ha-ir ha-atikah” (The Administration Will Resume Overt Activities in the Jewish Quarter of the Old City), Globes (Internet edition), 31 May 2002, at http://www.globes.co.il/serve/globes/, . DocView.asp?did=494353 & fid=2 (accessed on 30 May 2002).

61 The concept of dividing the sovereignty of the Temple Mount entered public debate during the Camp David talks in 2000–2001. It was suggested that the area of the Muslim mosques on Haram-al-Sharif (the Temple Mount) would be part of the Palestinian state, and the Jewish Western Wall (also called the “Wailing Wall”) would be part of the State of Israel.