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A Study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law (Book): Difference between revisions

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* '''abstract'''
* '''abstract'''
'''A study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%AA%D9%85%D9%84%DA%A9_%D8%A7%D8%B1%D8%A7%D8%B6%DB%8C_%D8%AA%D9%88%D8%B3%D8%B7_%D8%B4%D9%87%D8%B1%D8%AF%D8%A7%D8%B1%DB%8C%E2%80%8C%D9%87%D8%A7_%D8%A7%D8%B2_%D9%85%D9%86%D8%B8%D8%B1_%D9%81%D9%82%D9%87_%D9%88_%D8%AD%D9 تملک اراضی توسط شهرداری‌ها از منظر فقه و حقوق]), is a scholarly work in Persian that discusses the legitimacy of municipal ownership of private lands. The author, Reza Baghbani, focuses his research on private properties. He acknowledges the individuals' ownership of private lands based on such principles as the rule of ownership and mastery of people over their properties ([[Taslit]]) and the rule of liability for possession ([[Zeman yad]]), indicating that these rules suggest the precedence of private rights over public rights. However, he also acknowledges that public rights, due to their significance and the demands of justice, take precedence based on rules like '[[The principle of no harm|the principle of no harm]]' and '[[The negation of hardship rule|the negation of hardship rule]]'. Therefore, the author firmly believes that public rights are paramount, allowing municipalities to acquire private lands for the execution of public benefit projects. Nonetheless, he emphasizes that the implementation of such projects is conditional, with the most critical condition being the necessity of execution, such that failure to do so would harm the community.  
'''A study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law''' (in persian: [https://ency.feqhemoaser.com/fa/view/%D8%AA%D9%85%D9%84%DA%A9_%D8%A7%D8%B1%D8%A7%D8%B6%DB%8C_%D8%AA%D9%88%D8%B3%D8%B7_%D8%B4%D9%87%D8%B1%D8%AF%D8%A7%D8%B1%DB%8C%E2%80%8C%D9%87%D8%A7_%D8%A7%D8%B2_%D9%85%D9%86%D8%B8%D8%B1_%D9%81%D9%82%D9%87_%D9%88_%D8%AD%D9 تملک اراضی توسط شهرداری‌ها از منظر فقه و حقوق]), is a scholarly work in Persian that discusses the legitimacy of municipal ownership of private lands. The author, Reza Baghbani, focuses his research on private properties. He acknowledges the individuals' ownership of private lands based on such principles as the rule of ownership and mastery of people over their properties ([[Taslit]]) and the rule of liability for possession ([[Zeman yad]]), indicating that these rules suggest the precedence of private rights over public rights. However, he also acknowledges that public rights, due to their significance and the demands of justice, take precedence based on rules like '[[The principle of no harm|Principle of No Harm (<nowiki>''Lā Ḍarar''</nowiki>)]]' and '[[The negation of hardship rule|the negation of hardship rule]]'. Therefore, the author firmly believes that public rights are paramount, allowing municipalities to acquire private lands for the execution of public benefit projects. Nonetheless, he emphasizes that the implementation of such projects is conditional, with the most critical condition being the necessity of execution, such that failure to do so would harm the community.  
The author considers that pre-possession acquisition is permissible only when the implementation of the project is urgent; in such cases, acquisition can occur prior to possession. He does not regard consent, which is a prerequisite for the validity of a transaction, as applicable here, arguing that necessity renders the transaction valid without consent. In conclusion, he references the rights for which the municipality is obligated to compensate, including land and building rights, usufruct rights, easement rights, and others. He identifies legal means to secure these rights as monetary payment or non-monetary compensation, but asserts that municipalities also pursue other methods that are illogical and detrimental, such as granting excess construction density rights (<nowiki>''</nowiki>tarākom<nowiki>''</nowiki>) or authorizing changes in land use (<nowiki>''</nowiki>taghyīr-e kārbari<nowiki>''</nowiki>).
The author considers that pre-possession acquisition is permissible only when the implementation of the project is urgent; in such cases, acquisition can occur prior to possession. He does not regard consent, which is a prerequisite for the validity of a transaction, as applicable here, arguing that necessity renders the transaction valid without consent. In conclusion, he references the rights for which the municipality is obligated to compensate, including land and building rights, usufruct rights, easement rights, and others. He identifies legal means to secure these rights as monetary payment or non-monetary compensation, but asserts that municipalities also pursue other methods that are illogical and detrimental, such as granting excess construction density rights (<nowiki>''</nowiki>tarākom<nowiki>''</nowiki>) or authorizing changes in land use (<nowiki>''</nowiki>taghyīr-e kārbari<nowiki>''</nowiki>).


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==== The Rule of Authority over the Refraining Party (<nowiki>''</nowiki>Wilāyah ʿalā al-Mumtaniʿ<nowiki>''</nowiki>) ====
==== The Rule of Authority over the Refraining Party (<nowiki>''</nowiki>Wilāyah ʿalā al-Mumtaniʿ<nowiki>''</nowiki>) ====
The author indicates that a person who is unwilling to fulfill the rights of others or their own legal duties is considered recalcitrant. In accordance with this rule, the governing authority is permitted to act in place of the recalcitrant individual. The author asserts that the legislator has utilized this rule in the laws governing municipal projects to prioritize public rights. For example, these laws provide that if the executive body and the property owner cannot reach an agreement, a fair price will be established by three experts (one from the executive body, one from the property owner, and a third chosen by both parties). Should the property owner decline to nominate an expert, a qualified court will appoint one on their behalf (pp. 125-130).
The author indicates that a person who is unwilling to fulfill the rights of others or their own legal duties is considered recalcitrant. In accordance with this rule, the governing authority is permitted to act in place of the recalcitrant individual. The author asserts that the legislator has utilized this rule in the laws governing municipal projects to prioritize public rights. For example, these laws provide that if the executive body and the property owner cannot reach an agreement, a fair price will be established by three experts (one from the executive body, one from the property owner, and a third chosen by both parties). Should the property owner decline to nominate an expert, a qualified court will appoint one on their behalf (pp. 125-130).
'''• The principle of no harm'''
 
the author, first, engages in a detailed discussion to define this principle and provide the related documentation. He considers the principle of no harm to take precedence over The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>), which acknowledges personal rights. In essence,The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) is part of the evidence for primary decrees, while the principle of no harm is part of the evidence for secondary decrees. In these instances, there is no fundamental conflict, and the contradiction between the two evidences is resolved through common interpretative understanding or governance. This means that the owner's actions are restricted to non-essential cases, and the implementation of municipal plans is prioritized over the owner's right to act. The author further presents another scenario involving the conflict of two harms (rather than the conflict between Taṣlīṭ and no harm). He argues that, on one hand, the owner's actions, due to the non-implementation of municipal plans, cause harm to the community, while on the other hand, the execution of municipal plans results in harm to the owner. Here, he also prioritizes the prevention of the greater and more significant harm, namely the harm to the community, over individual harm, and constrains the owner's authority to situations where no harm befalls the community. He believes that with the compensation for properties by municipalities, the owner does not incur any harm. Furthermore, the author considers positive laws to take precedence over Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) and asserts that this will not lead to conflict. According to the writer, this principle is also enshrined in law, as exemplified by Article 40 of the Constitution, which states that no one may exercise their rights in a manner that harms others or infringes upon public interests (p. 13-156).
==== '''Principle of No Harm (<nowiki>''Lā Ḍarar''</nowiki>)''' ====
'''• The rule of negation of hardship'''
the author, first, engages in a detailed discussion to define this principle and provide the related documentation. He considers Principle of No Harm (<nowiki>''Lā Ḍarar''</nowiki>) to take precedence over The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>), which acknowledges personal rights. In essence,The Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) is part of the evidence for primary decrees, while Principle of No Harm (<nowiki>''</nowiki>Lā Ḍarar<nowiki>''</nowiki>) is part of the evidence for secondary decrees. In these instances, there is no fundamental conflict, and the contradiction between the two evidences is resolved through common interpretative understanding or governance. This means that the owner's actions are restricted to non-essential cases, and the implementation of municipal plans is prioritized over the owner's right to act. The author further presents another scenario involving the conflict of two harms (rather than the conflict between Taṣlīṭ and no harm). He argues that, on one hand, the owner's actions, due to the non-implementation of municipal plans, cause harm to the community, while on the other hand, the execution of municipal plans results in harm to the owner. Here, he also prioritizes the prevention of the greater and more significant harm, namely the harm to the community, over individual harm, and constrains the owner's authority to situations where no harm befalls the community. He believes that with the compensation for properties by municipalities, the owner does not incur any harm. Furthermore, the author considers positive laws to take precedence over Rule of Dominion (<nowiki>''</nowiki>Taṣlīṭ<nowiki>''</nowiki>) and asserts that this will not lead to conflict. According to the writer, this principle is also enshrined in law, as exemplified by Article 40 of the Constitution, which states that no one may exercise their rights in a manner that harms others or infringes upon public interests (p. 13-156).
 
==== '''Rule of Negation of Hardship (<nowiki>''</nowiki>Nafy al-ʿUsr wa-l-Ḥaraj<nowiki>''</nowiki>)''' ====
According to this principle, actions that may result in severe and unbearable hardship are prohibited. Municipal regulations that ensure the comfort and well-being of the public, if not enforced, lead to public distress; therefore, based on this rule, public rights take precedence over individual rights (pp. 156-161).
According to this principle, actions that may result in severe and unbearable hardship are prohibited. Municipal regulations that ensure the comfort and well-being of the public, if not enforced, lead to public distress; therefore, based on this rule, public rights take precedence over individual rights (pp. 156-161).


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