Selim Ali Agdi a Al-Huashela Et Al

Civil Appeal No. 218/74

Selim `Ali Agdi`a al-Huashela et al.

Versus

1. State of Israel

2. Selama Hassan Suleiman al-Hamdi

3. Selama Hussein Salman al-`Amrani

4. Wahid `Id `Awda Abu Suleb

In the Supreme Court in its Capacity as Court of Civil Appeals

[15 May 1984; 2 August 1984]

BeforeJustices D. Levin, S. Levin, and A. Halima.

Justice A. Halima: This is an appeal of a 7 July 1972 ruling of the Beer-Sheba District Court, which denied the appellants’ claims in the united cases of 1/69 and 3/69-17/69. During the land settlement operations undertaken in the area in accordance with the Land Settlement Ordinance (New Version), 1969, the thirteen appellants, who are Bedouin of the al-Huashela tribe, claimed that ownership of the parcels listed below should be registered in their names, based on the information provided in the memoranda of claim they submitted to the Settlement Department. They claimed the following parcels:

Block 39785, parcels: 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14;

Block 39703, parcels 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14.

Block 39702, parcels 4 and 5.

The state of Israel objected to these claims based on the argument that the parcels are in fact land of the mewatcategory, as defined in articles 6 and 103 of the Ottoman Land Code of 1274 Hijri (herein the Ottoman Code).The first court, which examined the evidence submitted by both parties, upheld the claims of the state and denied the claims of the appellants. On this basis, it decided to register the parcels listed above in their entiretyin the name of the state of Israel in the schedule of rights.

It should be noted that not all claimants who appeared before the first court appealed the ruling. Three of them (respondents 2-4) did not submit an appeal at all. Three others (appellants 4, 7, and 13) were stricken from the appeal in accordance with an 8 August 1984 ruling of the honorable Registrar. Therefore, the appeal before us is an appeal of 10 of the 16 claimants whose claims were denied by the first court.

2. In the memoranda of claim which they submitted to the Land Settlement Department at that time, the appellants indicated that they were claiming ownership of the parcels in question by virtue of possession and cultivation. However, they said nothing whatsoever about the type of land in the parcels they claimed.

The state, in contrast, disputed the type of land in all the memoranda of claim it submitted by claiming that these parcels were of the category mewat. This claim on the part of the state transformed the issue into the focus of theproceedings both in the first court and before us, as the Court first had to rule on this question as required by Section 155 and 156 of the Land Law, 1969 (herein, Land Law).

Section 155 states:

“Property which immediately before the coming into force of this Law belonged to the mewat category shall be registered in the name of the State, provided that where a person has received a title deed for any such property under article 103 of the Ottoman Land Code of 1274 Hijri or under the Land Transfer Ordinance, he or his successor shall be entitled to registration of the property in his name.

Section 156 states:

“The provisions of sections 153, 154, and 155 shall not derogate from rights which immediately before the coming into force of this Law existed in property referred to in those sections.”

These two sections are relevant to this case by virtue of the contents of section 166 (a) of the Land Law.

Indeed, there is no dispute regarding the fact that the appellants do not hold a title deed of any kind. They argue that the claims they submitted as described above are based on unregistered rights which had been passed down by many generations. They claimed the land in question as land which was cultivable from the outset, and not of the category of neglected land. Presently, in light of the state’s claims, we ask the following question: which of the parties proved its claims?

3. If it was the state that did so, the dispute must be determined in accordance with three provisions of law: articles 6 and 103 of the Ottoman Code, and the Mewat Land Ordinance, which was enacted by the government responsible in Palestine in 1921 (herein to be referred to in short as the Ordinance of 1921). According to the definition in article 6 of the Ottoman Code, land of the mewat category is:

“Land which is occupied by no one and has not been left for the use of the public. It is such as lies at such a distance from a village or town from which a human voice cannot make itself heard at the nearest point where there are inhabited places, that is a mile and a half, or about half an hour’s distance from such.”

Before the coming into force of the Ordinance of 1921, article 103 read as follows:

“The expression dead land means vacant land. Such as mountains, rocky places, stony fields, pernallik and grazing ground which is not in the possession of anyone by title-deed or assigned ab antiquo to the use of inhabitants of a town or village, and lies at such a distance from towns and villages from which a human voice cannot be heard at the nearest inhabited place. Anyone who is need of such land can with the leave of the Official plough it up gratuitously and cultivate it on condition that the legal ownership (raqabé) shall belong to the Treasury. The provisions of the law relating to other cultivated land shall be applicable to this kind of land as well. Provided that if anyone after getting leave to cultivate such land, and having had it granted to him, leaves it as it is for three consecutive years without valid excuse, it shall be given to another. But if anyone has broken up and cultivated land of this kind without leave, there shall be exacted from him payment of the tapou value of the piece of land which he has cultivated and it shall be granted to him by the issue of a title-deed.” ([Hebrew translation] from Aharon Ben-Shemesh, Land Law in the State of Israel (Masadeh, 1953), 147).

In his book Land Law in Israel (Ahva, 2nd Ed., 1952, p.47) legal commentator Moshe Doukhan addresses this type of land as follows:

“This broad category of land is made up of land known as dead land – abandoned, neglected dead land. These concepts refer to abandoned mountains and uncultivable lands possessed by no one, neither individually nor collectively, and which are at such a distance from an inhabited place that someone standing on the land cannot hear the voice of a man standing at the edge of a village or town. They are lands which are one and a half miles or one half an hour’s walk from an inhabited area. This category includes mountaintops, rocky and thorny areas, and grazing grounds that have not been assigned to anyone by the land registry offices (tabu) and that were not assigned ab antiquo for the use of a town or village.”

This description combines provisions of the two articles that are relevant for the matter at hand: articles 6 and 103 of the Ottoman Code. These two articles are based on Section 1270 of the Mejelle, which defines mewatas follows: “Land which is not the property of anyone owned in absolute ownership, nor the grazing ground of any town or village, nor a place where wood can be gathered, and which is remote from civilization. That is to say, a place where the voice of a person who is shouting from the outskirts of a town or village cannot be heard.” Although the Ottoman legislator thought that it was proper for land of this type to be granted for cultivation and development, he set one explicit condition in article 103 of the Ottoman Code – that such development be undertaken after receiving the consent of the authorities. A similar condition appears in section 1272 of the Mecelle. On this subject, see Doukhan’s aforementioned book, p.48:

“A person who cultivates mewat land with the permission of the Sultan obtains a property in them, and a person who cultivates such land without permission does not become proprietor of the land (according to Abu Hanifa).”

The Land Ordinance of 1921 emphasized the need for advanced authorization from the authorities with the following provision:

“Any person who without obtaining the consent of the Administration breaks up or cultivates any WasteLand shall obtain no right to a title deed for such land and further will be liable to be prosecuted for trespass. Any person who has already cultivated such waste land without obtaining authorization shall notify the Registrar of the Land Registry within two months of the publication of this Ordinance and apply for a title deed.” ([Hebrew translation] from Ben-Shemesh’s aforementioned book)

These provisions have been the subject of discussion of this Court on a number of occasions. In CA 518/61, on p.1720, the Court addressed this definition of the mewat category as follows:

“Such a definition of mewat land is far from being a clear and exact legal definition; the only thing in it that is clear is the distance determined by a unit of measurement. Article 6 indicates that one and a half miles is the distance from which the law assumes it is still possible to hear the loud voice of a person, although in practice this distance may vary from place to place, according to thetopography. Therefore, in thecontest between distance by measurement and distance by hearing, distance by measurement wins and is the determining one.” (my emphasis – A.H.)

In the same ruling (opposite the letter G), the Court also addressed the implications of the Ordinance of 1921:

“Until the enactment of the Mewat Land Ordinance of 1921, whoever revived and cultivated dead land with the permission of the authorities acquired the land by virtue of revival, and was entitled to receive a title deed for the land as miri. If revival was undertaken without the sanction of the authorities, he could acquire the land by payment of the value of the land (bedl misl). The Ordinance of 1921 completely changed the situation by establishing that from the Ordinance’s date of publication onward, anyone reviving and cultivating dead land without first receiving government sanction would not acquire the right to receive a title deed and may be charged with trespassing. In the case of revival that had been completed without the authorization of the authorities prior to the publication of the Ordinance, legal provision was made to base entitlementto a title deed on notification of the Registrar of Lands within two months of the publication of the Ordinance.” (my emphasis – A.H.)

As we see, obtaining the advanced sanction of the authorities is a condition without which the possessor is liable to be charged with trespassing. And if revival was undertaken before the enactment of the Ordinance, it was the possessor’s obligation to inform the authorities of this fact within two months of the day it was enacted. This principle was also confirmedin CA 342/61, p.2475 (opposite the letters D and E), as follows:

“As noted, the Mewat Land Ordinance was enacted in 1921. This ordinance provided anyone who had revived mewat land prior to the date of this Ordinance with the opportunity to inform the authorities within two months, and such a person’s claim was subject to the provisions of the Ordinance. This Ordinance annulled the final clause of article 103. That is to say, after the set period, a person who revived mewat land without such authorization was not entitled to receive a title deed in his name in return for the payment of bedl misl…” In such a situation, claiming cultivation or possession for a number of years cannot help the possessor, because the principle of prescription is not applicable to mewat land (ibid., p.2474; also, compare with CA 518/61, quoted above, p.1721, opposite the letters F-G).

Indeed, the requirement of obtaining advanced authorization from the authorities in order to revive mewatland emerges as a second thread running through all the doctrines on the subject. See also: CA 323/54; CA 274/62; CA 298/66. In the last appeal, this Court repeated the same principles (p.375):

“The Mewat Land Ordinance was enacted in 1921. It provided a final opportunity to obtain a title deed for previously revivedmewat land by reporting it during the two months following the publication of the ordinance. CA 518/61, cited above, explained that whoever missed this deadline was no longer entitled to register mewat land in his name during land settlement, even if he had revived it prior to 1921. Section 54 of the Land (Settlement of Title) Ordinance is also of no assistance to such a person, as the section’s final clause does not apply to mewat land…(my emphasis – A.H.).”

It seems to me that these doctrines have sufficiently clarified the state of the law with regard to mewat land, and that there is no need for additions or further treatment of the issue any more than necessary. Next, we ask what the state proved.

4. As we have noted, the state argued that the land in question in this appeal is of themewat category. As indicated by articles 6 and 103 of the Ottoman Code, land of this category is defined by two primary components: a) its distance from an inhabited place; and b)its location in a desolate place, and the fact that it was allocated to no one and is not possessed by anyone.

See CA 518/61, p.1720, opposite the letterE.

There can be no doubt that the state fulfilled its obligation in proving the first element – distance from an inhabited place – in accordance with the law, as it was proven that the closest settled place to the parcels in question is Dimona.

The district surveyor measured the distance between Dimona and the parcels and found (exhibittav/24) the parcel to be located more than 30 km from the town.

In this context, I should point out that the same distance that was measured by the district surveyor was estimated by appellant 2 to be five km (p. 85 of the minutes), and this is what appellant 2 testified (p.99 of the minutes). However, we should not forget that Dimona did not exist as an inhabited place before the establishment of the state. Therefore, the distance from the parcels to the closest inhabited place must be measured not between the parcels and Dimona, which is a new settlement, but rather between them and Beer-Sheba, which was the closest inhabited place during the period in question. In other words, we must take into consideration the facts on the ground as they were at the time that the Ottoman Code was enacted. This conclusion is based on CA 518/61, p.1720, opposite the letters B-D, which reads as follows:

“This argument can also not be accepted…Second, Arab al-Suweid is neither a town nor a village…from which the distance to the land in question can be measured. Furthermore, before the buildings were constructed the tribe lived in wool tents. However, no one testified that they lived there and constituted a permanent settlement since ancient times, that is, since before the enactment of the Ottoman Land Code, which is the determining date in this matter (my emphasis – A.H.)”

If we proceed in this manner and measure the distance from Beer-Sheba, it will certainly be found that the parcels are farther away from the closest settled place, thus strengthening the case of the state.

The appellants’ counsel advanced the argument that in past times a settlement by the name of Kornov was located in proximity of the parcels in question. Therefore – their argument proceeds – the distance should be measured from this locality. This argument is of no use to the appellants either, as it turns out that Kornov was not a settled place as intended by the relevant articles, and consisted only of a police station standing next to a Bedouin encampment, and nothing else.

Moreover, according to the testimony presented by the appellants on this subject, it turns out that Kornov was located a distance of 10 km from the parcels in question in this appeal (testimony of appellant 2, p.98-99, and testimony of appellant 3, p.86).

The appellants also claimed that in the mid-19th century the Bedouin village “Sir” - their ancestors’ place of residence - was located between Kornov and `Aruar, which is no more than one and a half miles from the land in question.

This argument was also refuted. The first court had been presented with a description of the area as seen by people who had crisscrossed the Negev during the previous century. This description indicates that there was neither a village nor cultivation in the region in question, and that aside from the Bedouin encampment and wild vegetation seen in the area, the region was desolate desert in its entirety. It should be emphasized that we all agree that not all land that is more than one and a half miles from the nearest inhabited place is mewat land. In any event, it is also necessary to prove the second element discussed above for the above definition to include within its limits the land in question. That is to say, it must be proven that this land is located in a desolate place and that it was neither possessed nor assigned to anyone (CA 518/61, p.1720, opposite the letter E).

The appellants’ claims regarding distance were rejected justifiably, and the first court rightfully ruled that the state had fulfilled its obligation in proving its argument regarding the distance between the parcels and the closest settled place.

5. With regard to the second element – location of the parcels in a desolate place, I would first like to point out a slight difference between the translation of articles 6 and 103 as they appear on pp.466-480 of Doukhan’s aforementioned book, and the translation of the same articles on pp.38 and 147ofDr. Ben-Shemesh’s aforementioned book. Doukhan uses the phrase “neglected places,” while Dr. Ben-Shemesh uses the phrase “desolate places.”