Each asset of land or building to which is attached a right for all the Muslims, and which does not belong to the public property, is a State property. The State property consists of assets which can be owned privately, like land, buildings and movable property. But since a right for all the Muslims is attached to it, taking charge of it and running it are entrusted to the Khalifah because he is the legitimate person responsible for the disposal of everything to which is attached a right for all the Muslims. These assets are not of the public property, as it is permitted for the Khalifah to grant the ownership of their origins (Asl) and their benefit to individuals, whereas it is not permitted for him to grant the ownership to anyone, whether an individual or group, the origin of public property. Therefore, these assets become State property, for the State has the authority to dispose of them, and this is the meaning of ownership.
Though the State takes charge of managing the public property and state property, there is a distinction between the two properties. All that is part of the public property such as petroleum, gas, replenishable minerals, seas, rivers, springs, open squares, forests, pastures and mosques, is not permitted for the Khalifah to grant its ownership to anyone, whether an individual or group, as they are property for all Muslims. The Khalifah has to enable all the people, through a specific type of management, to benefit from these properties according to his own Ijtihad in looking after the affairs and discharging the interests of the Muslims.
As for what is part of state property of land and buildings, it is for the Khalifah to grant ownership of it to individuals, whether its origin and its benefit or its benefit without granting ownership of its origin, or to allow its cultivation and possession. He disposes of all this, according to what he views as proper and good for the Muslims.
Types of State Property
1. Deserts, mountains, sea coasts (beaches) and uncultivated (dead) land not owned by individuals.
Every desert and every mountain, hill, valley, beach or uncultivated land, whether dead from a very long time and had never been cultivated before or had been cultivated before, then it changed into dead land because its landlords had vanished. All these lands of deserts, mountains, beaches and uncultivated land are considered as uncultivated (dead) and are owned by the State, and the Khalifah disposes of them according to his opinion and Ijtihad according to what he sees fit for the interests of Muslims. It is for him to allocate of it or give permission so as to be cultivated or closed off as private property (Tahjeer). From Bilal b. al-Harith al-Muzni: “The Messenger of Allah (saw) allocated to him the whole of Al-‘Aqeeq.” And in another narration, “The Messenger of Allah (saw) allocated to Bilal bin al-Harith al-Muzni what was between the sea and the rocks.” From ‘Amru b. Shu’aib from his father who said: “The Messenger of Allah (saw) allocated to people from Muzaina or Juhaina.” From ‘Adi ibn Hatim it is narrated “that the Messenger of Allah (saw) allocated to Furat b. Hayyan al-‘Ajli a land in Al-Yamama.” From Abyadh bin Hammal al-Mazini “that he was sent as an envoy to the Messenger of Allah (saw) and he asked him to allocate the salt to him and he allocated it to him. When he was turning away a man in the gathering said: ‘Do you know what you have allocated to him? You have allocated to him vast quantities of salt, water (mineral).’ He said: So the Messenger (saw) took it back from him.” And from ‘Amru b. Dinar, who said: “When the Messenger of Allah (saw) came to Madinah he allocated to Abu Bakr and allocated to ‘Umar as the Messenger (saw) made allocations to Az-Zubair b. al- ‘Awwam spacious land. He also allocated to him a place enough for his horse to race in the uncultivated land of An-Naqi’i, and he allocated to him land with trees and palm trees.”
These Ahadith which clarify that the Messenger of Allah (saw) allocated to Abu Bakr, ‘Umar, Az-Zubair, Bilal al-Muzni, Abyadh b. Hammal, Furrat b. Hayyan, the people of Muzaina and Juhaina and others, denote that the desert, mountains, valleys and uncultivated land not owned by anyone are State property and it is for the Khalifah to dispose of as he sees proper to Muslims. The disposal of the Messenger of Allah (saw) of these lands, and his allocation of them to such persons, without their being personal property for him either by inheritance or conquest, clearly indicate that they are owned by the State. Were they not property of the State he would not have had authority over them, nor would he have allocated them for he was not owner of any of them in a personal (or private ownership) capacity.
The property of Allah (swt) and His Messenger (saw) means the property of the State and the ownership of the Messenger (saw) of it gave him authority and free right of disposal over it. His authority and right of disposal over it transferred to the Khulafa’a after him, thus Abu Bakr, ‘Umar, Uthman, Ali and those who came after them used to allocate to people as the Messenger of Allah (saw) used to allocate to them due to their understanding that the desert, mountains and uncultivated land are owned by the State. So they have authority over them and are the people with the competence to dispose of them. Similarly the Companions and Muslims understood that these deserts, mountains and uncultivated land are the rights of Muslims in general and the authority over them is for the State, and that the Messenger (saw) and the Khulafaa after him are those who are competent to administer and manage their affairs, allocate them and give permission for their revival, cultivation and inhabitation. Therefore, Az-Zubayr b. al-‘Awwam, Abyadh b. Hammal, Bilal b. al-Harith al-Muzni, Abu Tha’alaba al-Khushni, Tamim al-Dari and others requested the Messenger (saw) to make allocations to them. Similarly Naf ’i Abu Abdullah of the people of Basra from Thaqif requested ‘Umar ibn Al-Khattab to allocate to him land in Basra (not the land of Kharaj nor that would harm any Muslim) to plant it with seeds for his horses, as narrated by Kathir b. Abdullah from his father from his grandfather, who said: “we came with ‘Umar ibn Al-Khattab in his Umra of the 17th year (Hijri) and the people owning water along the road spoke to him requesting the building of houses between Makkah and Madinah which had not existed previously. He gave permission to them upon the condition that the traveller has a greater right to water and the shade.” Abu Bakr b. Abdullah b. Maryam also narrated from Attiya b. Qays “that some people asked ‘Umar ibn Al-Khattab (for) land from Anzarkisan in Damascus as a place to tie up their horses.” From all of this, it is explicit that the desert, mountains and uncultivated lands are owned by the State and the Khalifah disposes of them according to his own Ijtihad whether in allocation, cultivation, selling, leasing, investment, shielding or any other forms of disposal as he deems good and proper for Muslims.
2. River-plains (Al-Bataih)
These are the low lands over which water overflows such as the riverplains present between Kufa and Basra over which flows the water of Dijla and al-Epherate after it breaks some of the fences that surround the watercourse of the two rivers and make the water gush from the places of breaching and cause the lands to overflow thus making them unsuitable for cultivation even though they were gardens, farms and houses. These riverplains (al-Bata’ih) resulted at the time of Qabath ibn Firoz, and they increased afterward and spread due to the negligence and ignoring of them because of the wars between the Muslims and Persians. Thus their area reached 30 Farsakh times 30 Farsakh i.e. what is equivalent to 27,225 square kilometres as a Farsakh is approximately equal to 5.5 kilometres. These lands which the water overflows and become unsuitable for planting due to the overflow of water take the rule of uncultivated (dead) land even if they happened to be inhabited with buildings and plants before. Thus they become property of Bait ul-Mal and property of the State as long as they are not owned by anybody. Linked with these river-plains are the thick forests, jungles and swamps as they are similar to them and take their rule.
3. Al-Sawafi (The State’s share of the booty)
These are all lands which the Khalifah decides to add to Bait ul-Mal from the conquered lands which remain without an owner after its people evacuated it or was owned by the conquered State, its rulers and leaders or those who were killed in the war or fled from the battle and abandoned it.
The first to segregate this share of the booty, and make it purely for Bait ul-Mal, was ‘Umar ibn al-Khattab. Abu Yusuf said: Abdullah b. Al-Walid, the slave of Abdullah ibn Abi Hurra, narrated to me and said: “‘Umar ibn Al-Khattab segregated from the people of Iraq ten types (of property): The lands of the one killed in the war, the one who fled, all lands belonging to Khosrau (the Persian king (Kisra)), all lands belonging to anyone of his family, all thickets of water, and every monastic post office, and he said: I forgot four remaining properties belonging to the Persian kings’, he said: ‘And the Kharaj of what ‘Umar sequestered amounted to seven million Dirhams.’
Therefore, when the Khilafah state conquers lands the Khalifah has to add to the property of Bait ul-Mal, i.e. State property, all buildings and lands which were owned by the conquered state, or its rulers or leaders, or those killed in the fields of war or those who fled from the war leaving their land behind. The Khalifah will dispose of it as he sees fit and of interest to Islam and Muslims.
4. Buildings and Roofed Houses (Al-Musaqafat)
These are the palaces, buildings or roofed houses seized by the State in the land it conquered and which were designated to the offices and departments of the conquered state, or to its institutions, utilities, universities and schools, hospitals, museums, companies and factories. They were also properties owned by the State, its rulers, leaders or those who fled the war or the battlefield, or those who were frightened of the Muslims and fled leaving them behind. All these palaces, buildings and roofed houses become booty and spoils to the Muslims, and they are due to the Bait ul-Mal and owned by the State.
Similarly every building or roofed house built by the State or purchased by funds from Bait ul-Mal is owned by the State and is designated for the offices of the State or its institutions, departments, utilities, universities and schools, hospitals or any utility which it supervises. The State also owns every building or roofed houses awarded, donated or bequeathed to her, or inherited from those who have no inheritor or from the apostate who has died or been killed due to his apostasy.
Utilising the State Properties
Shari’ah has entrusted to the Khalifah the taking care of the affairs of Muslims, discharging their interests and fulfilling their needs with what is of good and benefit, according to his own Ijtihad. He has to utilise the State properties to the best of his ability, so as to increase the revenues of Bait ul- Mal, to benefit all Muslims, and to prevent the State properties from being neglected, their benefits wasted and their revenues stopped.
The Messenger of Allah (saw) , and the Khulafa’a after him, all used to utilise these properties according to what they saw as beneficial to Islam and Muslims.
Investing the State properties does not mean that the State becomes a merchant, a producer or a businessman, such that it behaves as a merchant, manufacturer or businessman. The State is a guardian, therefore there should appear in its utilisation of the State properties, the taking care of the affairs of the people, discharging their interests and providing for their needs. So its job in principle is guardianship and not one of acquisition.
The State properties can be used in a number of ways including: -
1. Sale or leasing: All that which is State property and the public interest also requires the giving of its ownership, or the ownership of its benefit to the people, of land or buildings, it may sell or rent to them according to its view in achieving the benefit. This is whether it is land within a town to establish markets or houses or outside or close to it to establish warehouses or enclosures for cattle, sheep, livestock or domestic birds, or at the coast of seas or rivers to establish factories or economic installations or cultivated agricultural land for farming and forestation. Agricultural land is an exception to this and is only sold not rented.
2. Utilising a land which is mostly planted with trees and owned by the State is given to people to work in it, in return of a part of what it produces such as a quarter, a third or a half, similar to what the Messenger of Allah (saw) did with the people of Khaybar, Fadak and Wadi al-Qura.
3. Utilising the cultivated agricultural land by employing workers to till, farm and take care of it.
4. Reviving stagnant, wide-beds of streams, swamps, thickets, marshes swamps by blocking water from them, creating rivulets for them and discharging water from them and drying them so as to become suitable for cultivation and forestation.
5. Allocating land: This is carried out by the Khalifah by allocating land belonging to the State to people as he sees beneficial to Islam and Muslims. He may allocate this to someone rich or he has done service to Islam as he may allocate to people to reconcile their hearts to Islam. He may also allocate land to the peasants who need a means of sustenance. He also allocates land for cultivation so that it does not remain neglected or to increase its produce and fruits. He may allocate whenever he sees a benefit in doing so. The Messenger of Allah (saw) and the Khulafa’a after him allocated land as was previously mentioned in the Ahadith on this issue. Allocation could be of either Ushri land or Kharaji land. If allocation is from Ushri land, (that is similar to the land of the Arabian peninsula and all lands whose people embraced Islam upon it like Indonesia), then the Khalifah is permitted to give the ownership of its neck (Raqaba) and benefit to the allottee (al-muqta’a) or he may give its benefit only without its neck, permanently or for a limited time, as he sees beneficial to Muslims. This applies whether the land was dead (uncultivated) land which has never been cultivated or it was cultivated then neglected thus becoming dead, or it was cultivated land suitable for cultivation and forestation. In all these situations, ownership is not established by allocation alone, but by reviving the allocated land if it is dead land or planting crops and fruits if it was cultivated land. Allocation gives someone a legal right but ownership is not established except by completing cultivation in dead land or planting in cultivated land. Nothing is due upon this allocated land except the tenth (Ushr) of the produce of the land as Zakat if there is Zakat due on such produce after it reaches the Nisab. Absolutely no Kharaj is obliged upon it as there is no Kharaj on Ushri land. If the allocation is from Kharaji land which is the land opened by conquest such as Iraq, Ash-Sham and Egypt-then it has to be examined. If the allocation is from cultivated land, whether Kharaj has ever been imposed upon it or not, then the allottee will only possess its benefit not its neck as its neck is owned by Muslims. The Khalifah may grant ownership of the benefit to the allottee permanently or for a limited time as he sees beneficial for Muslims. Kharaj is obliged upon this allocated land, and ushr on the crops and fruits upon which Zakat is obliged if it reaches the Nisab after paying Kharaj from it. From Musa b. Talha, he said: “that Uthman b. Affan made allocations to five of the Prophet (saw) ’s companions, Az-Zubayr, Sa’d ibn Mas’ud, Usama b. Zayd and Khabbab b. Aratt, and he said: ‘My neighbours from among them were Ibn Mas’ud and Khabbab.’” Abu Yusuf said: “Abu Hanifa narrated to me from those who narrated to him saying: ‘Abdullah b. Mas’ud had Kharaji land as did Khabbab, Hussein b. Ali and others among the Companions, and also Shuraih, and they paid Kharaj upon it.” If the allocation is from uncultivated land then it is examined. If the allocated land was uncultivated from the beginning of time, or it was cultivated and tilled then became neglected and uncultivated before Kharaj was imposed upon it, like the wide-beds of water (al-bataih) in Iraq lying between Kufa and Basra, then the Khalifah can allocate both the neck and benefit of such land to the allottee or the benefit alone. Ownership of this land is not accomplished except by reviving it after its allocation. While the allocation gives the allottee a legal right in it, ownership is not completed except after achieving its cultivation and this must happen before the end of three years after the allocation. This came in the narration narrated by Tawus from ‘Umar ibn Al-Khattab who said: “The muhtajir (who shield a land) has no right after three.” From Muhammad (saw) b. Ubaid ath-Thaqafi, he said: “‘Umar b. al-Khattab allocated land in Basra to a man from Basra called Nafi’ Abu Abdullah which was Kharaji land that did not harm any Muslim when he grew reeds for his horses. ‘Umar wrote to Abu Musa al-Ash’ari that if it is as he says then allocate it to him.” Uthman b. Affan allocated to Uthman b. Abi al-‘As ath-Thaqafi land in Basra that was salt-marsh and forest which he removed and cultivated.
If this land is allocated to a Muslim then Ushr is due upon it while Kharaj is not due. Its rule is like the rule of uncultivated ushri land that is allocated and cultivated due to the Ahadith about this. From ‘Umar b. al-Khattab from the Messenger of Allah (saw) he said: “Whoever revives dead land then it is for him.” And from ‘Amru b. Shu’aib from his father from his grandfather from the Prophet (saw) , he said: “Whoever cultivates dead land then it is for him.” If this land is allocated to a Kafir Zimmi then Kharaj is due upon it like the land upon which its people are allowed to stay after its conquest in return for Kharaj, that they have to pay.
If this allocated land had previously been cultivated and Kharaj imposed upon it, then Kharaj is obliged whether it is allocated to a Muslim or Kafir Zimmi. For whatever Kharaj has been imposed upon conquered land continues until Allah (swt) inherits the earth and whoever is upon it.
6. Permission and encouragement to revive dead land. Such as when the Khalifah permits to the people, and urges them to revive uncultivated land, whether Ushri or Kharaji land which was uncultivated from the beginning of time and thus it was never cultivated, or it was previously cultivated then neglected and became dead.
With regards to reviving land, this could be for residence or establishing warehouses, factories or enclosures for animals or birds, and is accomplished by building and roofing as this is the first completion of architecture which makes possible its use as residence or as for warehouses, factories or putting animals or birds in. If the revival is for agricultural purposes then it is accomplished by encompassing the land to seclude it, distinguishing it from other lands, transferring water to it or digging a well in it, if it is a dry land where crops depend upon irrigation. It could be by blocking the water from it and drying it if the land is submerged with water or by ploughing the land, flushing the highland and inundating the lowland. By completing the revival, ownership is completed due to what came in the Ahadith on reviving (land), and the Hadith of ‘Umar from the Messenger of Allah (saw) : “Whoever revives dead land then it belongs to him.”
As for seclusion, it only establishes a legal right to the Muhtajir in what he secluded but does not complete his ownership. If three years passed without cultivating what was secluded then his right expires in that land. From Tawus from ‘Umar, he said: “The Muhtajir has no right after three.”
Whoever revives dead Ushri land, Muslim or Kafir, owns its neck and benefit. ‘Ushr as a Zakat is due on the Muslim in the crops and fruits upon which Zakat is obliged, if they reach the Nisab. Kharaj is not due in it as there is no Kharaj on ushri land. As for the Kafir, neither Ushr or Kharaj is upon him as he is not of the people of Zakat and Kharaj is not due on Ushri land.
Whoever revives dead Kharaji land upon which Kharaj had never previously been imposed owns both its neck and benefit, if he is a Muslim, and its benefit alone if he is a Kafir. ‘Ushr is due upon the Muslim not Kharaj, while Kharaj is due upon the Kafir equal to what was put upon its people when it was conquered in return for Kharaj.
Whoever revives dead Kharaji land upon which Kharaj had previously been imposed before it changed into dead land, owns its benefit alone not its neck whether he is a Muslim or Kafir. Kharaj is due upon him for it being a conquered land upon which Kharaj was imposed, so Kharaj must remain imposed upon it, whether owned by a Muslim or Kafir, until Allah (swt) inherits the land and whoever is upon it.
All the above apply if the revival was for agriculture.Whereas if the revival was for residence, or for establishing factories, storehouses or enclosures, there is no Ushr or Kharaj due upon it, whether this is Ushri or Kharaji land. The Sahabah who conquered Iraq and Egypt acquired land for building houses in Kufa, Basra and al-Fustat and settled there at the time of ‘Umar together with other people and did not have Kharaj imposed upon them, nor did they pay Zakat, as Zakat is due upon crops and fruits not houses and buildings.
Utilities
Utilities (Marafiq) are the assets from which benefit is derived, such as those of a house, land and government. This is derived from the word Rafiqe Bihi which means ‘helped him and benefited him’. The public utilities are the assets and services established by the State for the benefit of all citizens, and they include:
1. Communications Services such as for letters, telephones, telegrams, telex, television and satellite communications etc.
2. Money-exchange Services for transferring, depositing, changing currency, minting gold and silver currency or transforming it into ingots. The State bank will take charge of these services and those non-usurious services allowed to be executed.
3. Public Transport Services, such as trains in other than the public roads, as railroads in public roads are public property following the rule of public roads, which also applies to planes and means of sea transport.
These means are of individual property which are permitted for individuals to own. At the same time, it is allowed for the State to own these means, such as planes, trains and steamships, if it sees it fit for Muslims to help them and to facilitate their transport.
4. Factories: The State is obliged to set up two types of factories, owning to the obligation upon it to take care of the interests of the people.
The first type are factories related to the public property assets like factories for mining, treating and smelting minerals, as well as factories for extracting and treating gas. This type of property is allowed to be owned as public property conforming to the products which is being produced or to which it relates. Since the public property assets are owned as public property for all Muslims, the factories producing them can be owned as public property for all Muslims and the State establishes them, on behalf of Muslims.
The second type are factories related to heavy industry and manufacturing weapons. This type of property is allowed to be owned individually as it is of the private properties. However, these types of factories and industries require immense funds which are not available to individuals. In addition, these heavy weapons are no longer of the private property which can be owned by individuals unlike in the time of the Messenger (saw) and the Khulafa’a after him. Instead they have become State property which the State takes charge of it furnishing as a duty upon it, due to its responsibility of guardianship, particularly after weapons have developed in a terrifying manner and become heavy equipment of high cost. Due to all this, it became an obligation imposed upon the State to establish factories for weapons production and for heavy industry. This does not prevent individuals from establishing these industries.
These are the four utilities which the state is obliged to provide the people with, as a duty upon it in taking care of their affairs, and which accrue income. Since these utilities are owned by the State, their revenues and income would be owned by the State as well. They would be of the revenues of Bait ul-Mal, and placed in the department of the war booty and Kharaj, and spent on its other expenses.
The other utilities which the State has to provide and establish for them as services for them in taking care of their affairs, include schools and universities, hospitals, public roads and other services essential in taking care of the people’s affairs. Neither do they generate any revenue but instead require permanent expenditure, and there is absolutely no revenue derived from it.