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

Author: Hadi Sadeghi

• abstract

A study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law (in persian: 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' and '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 extra construction density permits and land- use change.

Book structure

"A Study of Land Acquisition by Municipalities from the Perspective of Islamic Jurisprudence and Law", authored by Rezā Bāghbānī addresses the issue of municipal acquisition of privately owned land. This work, which serves as the author's thesis, has been published by the Khorasan Seminary publishing house. The book consists of a preface and four sections. In the first section, the author discusses the fundamental principles and concepts required for the research across three chapters. The second section is dedicated to the conflict between private and public rights, with the first chapter addressing the foundations of the precedence of private rights over public rights, and the second chapter examining the foundations of the precedence of public rights over private rights. In the third section, the author explores the procedural stages of land acquisition, the issue of pre-possession acquisition, and the criteria for calculating prices and damages. The fourth section focuses on the rights of property owners in relation to land acquisition by municipalities and the methods by which municipalities can secure these rights, concluding with a summary and recommendations.

A new classification of land

In the first section of the book, the author examines the term 'acquisition' and discusses various types of land in Islamic jurisprudence and law. He categorizes land into wasteland, barren land, and cultivated land, while also distinguishing urban land into public, endowment, and private categories. The author asserts that wasteland is considered state property and remains under government control; unlike in the past, it cannot be owned by individuals through reclamation. Consequently, municipalities must seek permission from the government to claim wasteland. Additionally, barren land, if abandoned by its owners, is transferred to the government without compensation. According to the author, cultivated land may be owned by the individual who reclaims it under certain conditions. The author further elaborates on the various types of public lands that are owned collectively and cannot be subject to individual ownership. He posits that if the Endowment Organization deems it permissible to convert endowment lands that intersect with approved urban development plans, actions will be taken accordingly, while those that are not allowed by religious law should be leased for a significant duration.

Concerning private lands, the author believes that municipalities are required to follow the relevant legal procedures for acquisition and purchase. In the third chapter of the first section, the author discusses topics such as the responsibilities of municipalities and their planning initiatives, claiming that urban plans infringe upon the absolute and extensive rights of property owners. He then addresses the concepts of city boundaries and zones, concluding with a historical overview of the legal framework surrounding land acquisition by municipalities in Iran (pp. 20-67).

Conflict between private rights and public rights

In the second section, Rezā Bāghbānī examines the conflict between private law and public law across two chapters. The author clarifies that this conflict is not a fundamental one; rather, it represents a confrontation between the principles of property rights and public rights, determining which takes precedence (pp. 78-79). In the first chapter, he discusses the foundations for the precedence of private law over public law, while in the second chapter, he addresses the foundations for the precedence of public law over private law. After presenting the arguments from both sides, the author ultimately concludes that, based on the principle of justice, the rule of prioritizing the more significant over the less significant, and the precedence of governmental regulations, public law takes precedence over private law (pp. 161-163).

The precedence of private law over public law

The author refers to three jurisprudential principles that prioritize private and proprietary rights over public rights.

• The Rule of Taṣlīṭ The author elucidates the concept of the rule of ownership and mastery of people over their properties (Taṣlīṭ) and presents its supporting documents, referencing legal provisions influenced by this rule, including Articles 30 and 31 of the Civil Code, which state that "every owner has the right to all forms of possession and benefit from their property, except in cases where the law provides otherwise." Furthermore, it is stated that "no property can be removed from the possession of its owner except by legal decree." The writer argues that municipalities are required to compensate for private properties when they seek to acquire ownership rights of individuals; however, he also notes that this rule has lost its original sense in contemporary law, having been subject to numerous exceptions and now limited by the condition of not causing harm to society. He believes that even within religious law, there are restrictions on this rule, such as the prohibition of ownership over certain items like alcohol, and the restriction of dominion in cases where it may harm others, among others. (pp. 80-90). • The rule of Zeman yad After defining and citing the documentation of the rule of liability for possession (Zeman yad), the author considers usurpation to be one of the most significant instances of this rule. According to this rule, in cases of domination and control over someone else's property, the possessor is liable for any damages incurred to that property. The law, based on this rule, prevents unlawful encroachments by municipalities on property rights and obliges municipalities to reach agreements with property owners. However, this rule also has exceptions, such as in cases where the implementation of a project is urgent (pp. 90-98). • 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).

The precedence of public law over private law

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 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 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 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 Taṣlīṭ, which acknowledges personal rights. In essence, the rule of Taṣlīṭ 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 the rule of Taṣlīṭ 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). • 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).

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.

The primary condition for acquisition is the existence of approved and necessary plans. The second condition is securing funding prior to acquisition, meaning that the executing agency must have arranged a fair and reasonable price for the property before proceeding with the acquisition. The third condition stipulates that there should be no national or state lands available for the project, as the executing agency would not be permitted to acquire private lands in such cases. Another requirement is that the executing agency must complete the acquisition and payment within the legal timeframe and notify the owner of the intent to acquire. Finally, the acquiring agency must carry out the registration formalities, as failure to register will result in the annulment of the acquisition (pp. 166-180).

In the second chapter of the third section, the author considers pre-possession acquisition to be prohibited by law and evidence, asserting that the owner has the right to file a complaint for unlawful possession and request eviction. However, there is an exception to this principle, which is the urgency of project execution; in such cases, it is permissible to occupy the property prior to possession, provided certain conditions are met. The conditions for pre-possession acquisition include the necessity for the project to be urgent, and the potential for irreparable harm to the community if not executed. Additionally, the minister of the executing agency must approve the immediate execution of the project, and a record must be prepared in the presence of the owner, the prosecutor's representative, and an expert before the project commences, determining the property's value. The executing agency is also required to pay a fair price within a maximum of three months (pp. 181-187).

In the third chapter, the author states that the primary principle for the acquisition of private lands is that the municipality must reach an agreement with the owner regarding the acquisition and pay a fair price. If an agreement cannot be reached, the current market price will be determined by an appointed expert, and the property will be forcibly acquired by the municipality. The author further discusses the conditions of consent and intention in contracts, asserting that a transaction is invalid if it is made under duress, and that a contract cannot be valid without consent. However, the author does not consider the municipality's acquisition of land as a case of duress, but rather views it as a situation of necessity, arguing that a lack of consent does not affect its realization. He defines the current market price as the average market price minus an amount for the municipality's acquisition clause or the price set by official experts who tend to favor the lower end of the market price range (pp. 188-209).

How to assess property owners' rights and ensure their protection

In the first chapter of the fourth section, the author discusses the rights of property owners regarding land acquisition by municipalities. The most significant of these rights include ownership of the land (the owned property) and the fixtures (any material object that is attached to or associated with the land). The author further examines additional rights such as the right of usufruct (like the right of waqf), the right of easement, the right of mortgage, the right to engage in business or trade, and the right of leasehold. He asserts that municipalities should acknowledge these rights and compensate the owners for them at current market value (pp. 212-243).

In the second chapter, the author discusses the methods for securing the rights of property owners. According to him, the law provides two means for this purpose: one is monetary compensation, and the other is the provision of equivalent or non-monetary compensation. The author believes that municipalities employ additional methods not mentioned in the law to secure these rights, such as granting extra construction density permits and land -use change. However, the author considers these municipal actions to be illogical and detrimental (pp. 244-255).