IHYA’ AL-MAWAT (REVIVAL OF DEAD LAND

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Sharifah Zubaidah Syed Abdul Kader (2011)

Questions:
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1) What is the meaning of Ihya’ al-Mawat? 2) What are the authorities to show that Islam accepts the principle of Ihya’ al-Mawat? 3) What type of land can be categorised as ‘Mawat’ land? 4) What constitutes ‘Ihya’’? 5) Is consent of the State required to commence Ihya’?

Meaning:

A principle of Islamic law of property whereby a person can acquire ownership of land from the state by rehabilitating dead land.

Authorities:

From Urwah bin Zubayr, the Prophet (s.a.w.) was reported to have said: “Who quickens a dead land, it is his, there is no right of expropriation (against him)”

From Samurah b. Jundub:

“Whoso cultivates and inhabits a land which its owner is not able to do and has left to die, shall have it.”

From Aishah (r.a.): “Whoso cultivates and inhabits a land which is nobody’s, shall have the best right to it.”

The practice of Prophet Muhammad (s.a.w.) relating to recognising the right of the first person to revive dead land (Ihya’ a-’Mawat) has been followed by Khalifah Umar (r.a.) and the rest of Khulafa ar Rashidun thereafter.

What is meant by MAWAT land?

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Shafi’ie school categorises Mawat land into 2: i) abandoned land; ii) land that has never been worked on and never seen the toil of man.

Mawat land according to Hanafi School
Dead land Located far away from human settlement Dry land, never been irrigated: unsuitable for cultivation.

‘The Mejelle’ – Civil Code of the Ottoman Caliphate

Article 1270:

“Those lands which are not the Mulk property of anyone, the locality (of which)… are far from the distant parts of a village or town, that is to say, the sound of a person who has a loud voice cannot be heard from the houses which are the extreme limit of the town or village.”

Mawat land according to Hambali and Maliki School

Land that is not owned by anyone and there is no sign of it ever having been cultivated. Deemed to belong to the State.

What Constitutes IHYA’?

Terminologically means: “to rehabilitate dead land by constructing a building or cultivating it.”

Imam Malik:

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Any work done on the land to show the intention of rehabilitating such dead land. e.g.: Irrigation works, digging a well, ploughing the land, planting of trees, building a house, etc. Similar to the views of the Hanafi School.

Shafi’ie School:

The method of Ihya’ differs in accordance with the purpose of rehabilitation. Thus, if the land is intended for a residence, it is considered Ihya’ if a covered building is erected on it.

Does fencing the land constitute Ihya’? (‘Tahjir’)
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Imam Shafi’ie: The act of tahjir alone does not constitute Ihya’.

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Hanafi School: Tahjir is a notice to 3rd parties to claim priority over the land. However, the effect of tahjir will lapse if the land is not timeously cultivated or rehabilitated.

Whether Consent of the State is Required?

Shafi’ie School and Abu Yusuff: The consent of the State is not necessary to commence Ihya’.

Hanafi School and later jurists: Ihya al’Mawat requires the consent of the state in order to prevent disputes arising from conflicting claims.

Maliki School: Consent is only required where the Mawat land is situated close to any human setllement.

Hambali School: Consent is necessary where the land was previously owned by someone. Otherwise, not necessary.

THINK:

Can the principle of Ihya’-al-Mawat be used to solve the squatter problem in Malaysia?

NLC Provisions to consider:

S.40:

S.48, s. 425

Temporary Occupation Licence (s.65)

TOL may be a temporary mechanism to deal with the squatter problem. It allows the squatter to become lawful occupiers of state land temporarily. May be similar to Iqta’ Irfaq.

However, upon expiry of TOL, the ex-TOL holder becomes a trespasser on state land and may be evicted. (PP v Yap Tai) Is this not contrary to Ihya’ al-Mawat esp. when the ex-TOL holder had rehabilitated the land?

THE END

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