The Supreme Court rejected the appeal of Yitzhak and Amalia Kalkoda from the Kfar Truman settlement, and ruled in a precedent-setting decision that a landowner who made extensive commercial use of agricultural land will be required to return the entire land to the Israel Lands Authority, and will not even be entitled to compensation for the structures built on the land.
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The Kfar Truman settlement is located near Ben Gurion Airport. It was established on state land managed by the Israel Lands Authority (ILA), which leased it to the Kfar Truman Cooperative Association, of which the Kalkoda couple are members.
The block agreement stipulates that the use of the land and the construction of buildings will be permitted for agricultural purposes only. The association or its members are prohibited from transferring the rights to the land to third parties, including by way of lease, without the approval of the Ministry of Agriculture. It was also noted that violating the agreement would allow the Ministry of Agriculture to reclaim the land without paying compensation.
The Kalkoda couple own two estates with a total area of approximately 43.7 dunams, on which many illegal structures have been built over the years, which were rented to third parties and various unusual uses were carried out, including operating a vehicle parking lot that provided parking and transportation services to Ben Gurion Airport, a B&B complex, and other extensive commercial activity on a large scale.
Numerous legal proceedings, both criminal and civil, have been taken against Kalkoda over the years, but they have not ceased their illegal activities.
Their appeal revolved around the ruling of the Central District Court, which accepted the Rami claim, presented by the Attorney General's Office, and ordered the return of the estates to the state, while canceling Kalkuda's rights to them, the demolition of the illegal structures, and the charging of the defendants with appropriate usage fees for the illegal uses.
The Supreme Court rejected the appeal, stating: "It is unacceptable that a holder of rights in public lands would blatantly violate his obligations under the agreement, act contrary to court orders and contrary to his own obligations, and expect that his rights under the agreement cannot be denied.".
Judge David Mintz: "Nothing helped. Despite the indictments, convictions, sentences and agreements - the appellants continued to commit blatant violations and unlawful uses of the land. All this, while generating enormous profits at the public's expense.".
He further stated that the fact that criminal and administrative proceedings were taken against Kalkoda does not prevent the state from taking measures on the civil level as well, since as part of its duty to protect public resources, the state is required to file civil lawsuits that will seek to return funds to the public treasury.
The court rejected the claim that the remedy of returning the land to the owner should be reserved for extreme cases only. "The main and most fundamental purpose of the plot agreement is to utilize the land for agricultural purposes only," it ruled. "Where the provisions of the section regarding the ability to transfer rights therein are violated, the purpose of the agreement is violated and in fact the most basic element for entering into it is omitted.".
""This, whether it is a one-time violation or a prolonged violation; whether it is a 'minor' violation or a serious violation; whether it is a violation that was stopped many years ago or recently; whether it is a violation on the edges of the land or on all of it. Where the purpose of the agreement is not fulfilled, the Land Management Authority - the one who believes in preserving the limited and precious public resource of Israel's lands - must be left with the tools to cancel it.".
The ruling determined that the agreement would be canceled regarding the entire area of the estate, without distinguishing between the agricultural areas and the residential areas and without the right to compensation for the constructed structures, with a clear statement that the land was given for agricultural purposes and the construction of the residential structures was intended to fulfill the main purpose - the establishment and development of an agricultural settlement.
The Calcoda were charged with paying usage fees totaling approximately 7 million shekels, reflecting the wealth they gained from illegally using public land.
On the issue of how to calculate the usage fees, the court accepted the state's position, according to which the usage fees should include the entrepreneurial profit component that, in the case of unauthorized uses, belongs to the RMI as the owner of the land.
The case was handled in the Supreme Court by Attorneys Adi Ron and Osnat Dafna from the Civil Enforcement Unit at the State Attorney's Office, and in the District Court by Attorney Little Sadovsky from the Tel Aviv District Attorney's Office (Civil).
