Islam & Land Rights

Sharifah Zubaidah Syed Abdul KaderAIKOL

(Sem.1 - 2012/2013)

1) What are essential characteristics of Islamic land ownership?

2) Why is land ownership NOT ABSOLUTE in Islam?

3) What are the types of land holdings in Islam?

4) How does the State exercise powers of disposal over land in Islam?

5) How is land classified in Islam?

1) Allah as absolute owner of all lands

2) Man as Trustee

All properties belong to Allah. Allah as the true owner, controller, protector,

Creator.

Authorities: Al’ A’raf: 128 10:66 2:30 An’ Nisaa: 132 20:6

وا رب اص ه و ينوا بالل تع ه اس م و ق ى ل وس قال م تقني م ل ة ل ب اق الع و ه اد ب ع ن اء م ش ن ي ا م ثـه ور ه ي ل ض ل ن األر إ

Said Moses to his people: "Pray for help from Allah, and (wait) in patience and constancy: for the earth is Allah's, to give as a heritage to such of His servants as He pleaseth; and the end is (best) for the righteous.”

يال ك ه و فى بالل ك ض و األر ا يف م ات و او م الس ا يف ه م ل ل و

Yea, unto Allah belong all things in the heavens and on earth, and enough is Allah to carry through all affairs.

The verses suggest that Allah is the True Owner while mankind merely holds the property on a temporary basis (majazi).

That Allah has created this world for mankind.

Land and other natural resources are a GIFT from Allah.

Mankind as Khalifah or Trustee of Allah in dealing with property.

The concept of ‘stewardship’. (See Al-An’am: 165, Al-Hadid :7)

ا م يف كم و ل بـ لي ات ج ر ض د ع ق بـ و فـ م ك ض ع بـ فع ر ض و الئف األر خ م ك ل ع الذي ج و ه و يم رح ور غف ل نه إ اب و ق الع يع ر بك س ن ر إ م آتاك

“It is He Who hath made you (His) agents, inheritors of the earth: He hath raised you in ranks, some above others: that He may try you in the gifts He hath given you: for thy Lord is quick in punishment: yet He is indeed Oft-forgiving, Most Merciful.”

م نك نوا م آم ين يه فالذ ني ف ف ل تخ م مس ك ل ع ا ج قوا مم أنف ه و ول س ر نوا بالله و آم ري ب ك ر أج م وا هل ق أنف و

“Believe in Allah and His apostle, and spend (in charity) out of the (substance) whereof He has made you heirs. For, those of you who believe and spend (in charity),- for them is a great Reward.”

As trustee of Allah, men are subject to the policy and laws as prescribed by Allah in the Quran and hadith.

Allah allows man to own land for the benefit of himself and others.

Limitation: The ownership and use should not exceed the limits

prescribed by Allah swt. (e.g. not to leave the land idle, not to injure your neighbour, not to use your land for haram purposes.)

The laws of Allah requires man to : Give others their share as well (no monopoly) (e.g.

the rights of neighbours, co-proprietors to shufaa’) To pay the necessary tax. (land tax, zakat) Be moderate. (eating, ownership) Give rights of others –fulfill promise, aqd,

inheritance, gift, harta sepencharian, fulfill amanah (the orphans)

Is known as ‘aqar(immoveable property) as opposed to manqul(moveable property)

Query:

Does Islam recognise private land ownership?

Can a Muslim OWN land?

The Quran recognises the right to own property.

Remember your Maqasid as Shari’ah? (purpose of the shariah/ objectives of Islamic

law) What was the 5th Maqasid?

1. Protection of ad-Deen (Islam)2. Protection of Life3. Protection of Intellect or Faculty of

Reason (‘Aql)4. Protection of Progeny or Offspring

(‘Lineage’)5. Protection of Material Wealth. (‘Property’)

“O ye who believe! Eat up not your property among yourselves in vanities. But let there be

amongst you traffic and trade by mutual goodwill.”

(An’ Nisa: 29)

“ That ye believe in Allah and His Messenger, and that ye strive (your utmost) in the cause

of Allah, with your property and your persons, That will be the best for you, if ye but knew.”

As-Saff:11

Land is for the benefit of mankind.

“It is He who has made the earth manageable for you, so traverse you through its tracts and enjoy the sustenance which he furnishes; but unto Him

is the resurrection”(Al-Mulk:15)

Islam promotes development No land shall be left idle –if not able to utilise

then, return to the govt – Case of Bilal ibnu Harith ▪ Practise of Umar, land must be developed within

3 years. (Following sunnah of the Prophet s.a.w.) Under utilised land can be acquired without any

compensation.

Holy Prophet (s.a.w.) had granted the whole of Wadi Aqiq to Bilal.

Bilal could not fully cultivate it, left greater part uncultivated.

Umar (r.a.) requested Bilal to cultivate all the uncultivated land but Bilal failed to do so.

Islamic state took back all the uncultivated portion and let Bilal keep the cultivated portion.

No compensation given.

The Islamic State may acquire private land when it is required for ‘maslahah ‘ammah’ –higher interests of the public.

Case of the People of Bajeela Principle of At-Ta’mim - allows the govt. to

acquire land with compensation.

Umar (r.a.) had given some land to the people of Bajeela which they had cultivated for 2 to 3 years.

When a new and better form of administration, more beneficial for the community, was found, the State took back the land from them.

Reasonable compensation given.

1) Under-utilised – no compensation.

2) For public purposes – with reasonable compensation.

State land (‘miri’)

Private land (‘mulk’)

WAQF land

Iqta’ means ‘cutting out, or carving out’. Iqta’ is used to refer to the act of the State in

granting rights over land to certain persons. Same as the concept of disposal of land under

the NLC.

“It is the duty of the Ruler to grant an Iqta’ to a Muslim who requests for such a grant.”

(Kitab Al-Umm)

Iqta’Tamlik(Concession of Ownership)

- Alienation of land by the State where such land becomes private land.

Iqta Irfaq(Concession of Usufruct)

- Grant of usufructuary rights to the grantee.

- Right to possess and use.

Waqf lands are created by the owner of land when he dedicates his land for charitable purposes.

“When the son of Adam dies, his deeds come to an end, except charity with enduring benefits, his knowledge which benefits others and his virtuous son; they pray for him (bless him.”

Hadith:“Men are partners in (the ownership) of 3 things:

-water, pasture and fire sources.”

(Musnad Ibn Hanbal)

Salt, water and al hima, and fire shall not be alienated

Prescribes clear guidelines, rules and regulation pertaining to land dealings and transactions

Principles of Islamic banking recognizes land as a type of security for loans.

A) Type of Land tax imposed. (ushri’ land and kharaji land)

B) Inhabitation.( amir land and mawatland)

C) Type of grant from the state (Iqta’Tamlik, Iqta’ Irfaq)

D) Type of acquisition by the state.

Book: The Centenary of the Torrens System in Malaysia (Ahmad Ibrahim, Judith Sihombing, editors., MLJ (1989) – See article: “Islamic Concepts and the Land Law in Malaysia” by Prof. Ahmad Ibrahim.

Islamic Principles and Land: Opportunities for Engagement (online resource from GLTN, UNHABITAT)

Abu Yusuf’s Kitab Al-Kharaj Kitab Al-Amwal.