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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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'''• Muslim property should be respected'''
'''• Muslim property should be respected'''
After defining and citing the documentation of this rule, Baghbani considers the legal provisions regarding usurpation and unauthorized transactions to be inspired by this rule and the rule of Zeman yad. He believes that the legal provisions present in the rule of Zeman yad are also applicable to this rule (pp. 98-101).
After defining and citing the documentation of this rule, Baghbani considers the legal provisions regarding usurpation and unauthorized transactions to be inspired by this rule and the rule of Zeman yad. He believes that the legal provisions present in the rule of Zeman yad are also applicable to this rule (pp. 98-101).
===The precedence of public law over private law===
 
=== The Priority of Governmental Decrees (<nowiki>''Aḥkām Ḥukūmatī''</nowiki>) ===
The author references several principles that support the precedence of public rights over private rights, in addition to those that assert the priority of private rights over public rights.
The author references several principles that support the precedence of public rights over private rights, in addition to those that assert the priority of private rights over public rights.
'''• The priority of the executive order'''
'''• The priority of The Governmental Decree (<nowiki>''Ḥukm Ḥukūmatī''</nowiki>)'''
The executive order, as interpreted by the author, refers to "the detailed commands and instructions, the establishment of general laws and regulations, and the directives for the implementation of religious laws and decrees. These are issued by the legitimate leadership of the community, who acts in accordance with the divine right to lead bestowed upon them by God or the infallible, while considering the welfare of society". The author further examines the nature of the executive order and provides the related documentation. He asserts that addressing the challenges faced by the system, which is legally the responsibility of the leadership, falls under the category of executive orders. He views legislation across all domains as part of the responsibilities and authorities of the leadership, which has been delegated to other institutions. Consequently, all regulations concerning the acquisition of individuals' lands by municipalities, approved by the parliament, are deemed both religiously and legally valid as executive orders (pp. 102-125).
The Governmental Decree (<nowiki>''</nowiki>Ḥukm Ḥukūmatī<nowiki>''</nowiki>), as interpreted by the author, refers to "the detailed commands and instructions, the establishment of general laws and regulations, and the directives for the implementation of religious laws and decrees. These are issued by the legitimate leadership of the community, who acts in accordance with the divine right to lead bestowed upon them by God or the infallible, while considering the welfare of society". The author further examines the nature of The Governmental Decree (<nowiki>''</nowiki>Ḥukm Ḥukūmatī<nowiki>''</nowiki>) and provides the related documentation. He asserts that addressing the challenges faced by the system, which is legally the responsibility of the leadership, falls under the category of executive orders. He views legislation across all domains as part of the responsibilities and authorities of the leadership, which has been delegated to other institutions. Consequently, all regulations concerning the acquisition of individuals' lands by municipalities, approved by the parliament, are deemed both religiously and legally valid as executive orders (pp. 102-125).
'''• The rule of authority over the recalcitrant individual'''
'''• The rule of authority over the recalcitrant individual'''
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).
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'''• The rule of negation of hardship'''
'''• The rule of negation of hardship'''
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).
==How to acquire properties and the requirement to sell mandated by the municipality==
==How to acquire properties and the requirement to sell mandated by the municipality==
In the third section of the book, the author discusses the steps that municipalities must follow to be authorized to acquire land and properties; otherwise, they are not permitted to infringe upon private ownership.
In the third section of the book, the author discusses the steps that municipalities must follow to be authorized to acquire land and properties; otherwise, they are not permitted to infringe upon private ownership.
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