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.