Series of Questions Addressed to Scholar Sheikh Ata Bin Khalil Abu Al-Rashtah,
Ameer of Hizb ut Tahrir through his Fiqhi Facebook Page

Assalamu Alaikum Wa Rahmatullah Wa Barakaatuhu

My question is regarding leasing of as-Saniya (Land with irrigation equipment and other facilities)

I am your brother Wisam Al-Andalusi from Tunisia...

In the Book The Economic System of Islam, it mentions on page 150 (the English Version) the following: "A landlord is absolutely not allowed to lease his land for farming, whether he possessed both its neck [title] and benefit, or he possessed its benefit only".

And on page 153 it mentions: "With regard to leasing the land of Khaybar in return of its half, this is not part of this subject, because the land of Khaybar was planted with trees and not bare".

As for the subject of leasing of land for farming, its ruling is clear, the Manat or reality of the ruling is: "the land which is specific for farming", but the Manat of the ruling was different regarding the land of Khaybar, because the land of Khaybar was planted with trees, and the trees belong to the landlord, a land planted with trees is different to bare land, even if there was land present between trees it will be part of it.

As for As-Saniya it is: "the land with irrigation equipments or watering like a well or Jabiya (a basin which collects water) or irrigation canals linked by the state for farmers for a payment in return for the delivery of water to the plants (drop by drop irrigation canals). A house, a stable, and air-conditioned homes, medical devices and other agricultural equipment could be present which are needed by the farmer and come with the land.

Question:

1-  Can we say that the Manat of the ruling (the land) changes in the case of As-Saniya, since it has become a land that include facilities that are a part of it and it is not a bare land?

2-  If a land is not specified for farming production such as producing decoration flowers or plant (nurseries) or for farming animals will the Manat of the ruling also changes?

3-  Is leasing of land allowed in the above situations?

Wassalamu Alaikum Wa Rahmatullah Wa Barakaatuhu

Answer:

Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu

1-  The meaning of bare is that the land is for farming, i.e. that it is specified for farming but is not farmed yet, leasing of this land is prohibited, from the evidences for this:

روى رافع بن خديج قال: «كُنَّا نُخَابِرُ عَلَى عَهْدِ رَسُولِ اللَّهِ صلى الله عليه وسلم، فَذَكَرَ أَنَّ بَعْضَ عُمُومَتِهِ أَتَاهُ فَقَالَ: نَهَى رَسُولُ اللَّهِ صلى الله عليه وسلم عَنْ أَمْرٍ كَانَ لَنَا نَافِعاً، وَطَوَاعِيَةُ رَسُولِ اللهِ صلى الله عليه وسلم أَنْفَعُ لَنَا وَأَنْفَعُ. قَالَ: قُلْنَا: وَمَا ذَاكَ؟ قَالَ: قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم: مَنْ كَانَتْ لَهُ أَرْضٌ فَلْيَزْرَعْهَا أَوْ لِيُزْرِعْهَا أَخَاهُ، وَلا يُكَارِيهَا بِثُلُثٍ وَلا بِرُبُعٍ وَلا بِطَعَامٍ مُسَمًّى» أخرجه أبو داود

Narrated by Rafi' Bin Khadeej that he said: "We used to Farm (Nukhabir) at the time of the Messenger of Allah (saw), so he mentioned that one of his relatives came to him and said: the Prophet (saw) prohibited a matter that delivered a lot of benefit to us, but the obedience to the Prophet is of a greater benefit to us. He said: we said: and what is that matter then? He said the Prophet (saw) said: "Whoever has land, he has to plant it or let his brother plant it, and he cannot lease it for its third or fourth or a specified food."

The Mukhabara is the farming.

2-  If it was not bare, i.e. it was planted with trees which requires care, leasing it in this situation is called Musaqat, and it is permitted, even if between the trees there are small spaces of land that are farmed, because in this situation this land will be part of the trees, so caring for the trees is the basis. From the evidences of Musaqat:

أخرج البخاري عن نافع أن عبد الله بن عمر رضي الله عنهما أخبره: «أَنَّ النَّبِيَّ صلى الله عليه وسلم عَامَلَ خَيْبَرَ بِشَطْرِ مَا يَخْرُجُ مِنْهَا مِنْ ثَمَرٍ أَوْ زَرْعٍ، فَكَانَ يُعْطِي أَزْوَاجَهُ مِائَةَ وَسْقٍ ثَمَانُونَ وَسْقَ تَمْرٍ وَعِشْرُونَ وَسْقَ شَعِيرٍ...»

Bukhari extracted from Nafi' that Abdullah Bin Omar (may Allah be pleased with both of them) said to him: "The Prophet (saw) permitted the lease of the land of Khaybar for a fraction of what it produces of  fruits or crops, he (saw) gave his wives one hundred wasaq: eighty wasaq of dates, and twenty wasaq's of barley..."

The land of Khaybar was planted with trees and between the trees were spaces that were farmed. This is clear from the hadeeth: «ثَمَانُونَ وَسْقَ تَمْرٍ وَعِشْرُونَ وَسْقَ شَعِيرٍ...» "Eighty wasaq of dates and twenty wasaq of barley..."

Trees were the majority on the land, the Prophet (saw) leased it for a specific wage in return, and i.e. he permitted its lease because it was planted with trees which is called Musaqat i.e. caring for the trees.

3- If the land specified for farming has what you call As-Saniya in the details that you have mentioned i.e. "the land with irrigation equipments or watering like a well or some buildings like a house, a stable ... and the rest of the land is not farmed, because it is considered bare as long as it is not farmed." Its leasing for agriculture is not allowed, and the existing channels or the buildings do not affect this. Because it is bare as long as it is not farmed.

It seems that you were confused over the meaning of bare and you thought that the bare land is the one that has no facilities... Bare land means the land which is not farmed. This way the land which is not farmed is considered bare even if it had a house as long as the lease is for its farming.

4-  As for leasing of land for non-farming production, i.e. not for farming, it is permitted, nothing is wrong with it because what is prohibited is the lease for farming. If the lease was for building a manufacturing workshop or for a car park, or an exhibition for selling products, or for cattle farming, all is permitted. They are not prohibited because they are not farming, also this includes leasing the land to produce decoration flowers or for plant nurseries as long as the plants are not farmed on the leased land, but are planted on pots and specific basins; which is well known of plant nurseries and decoration plant farms, like flowers. The land is used only to place the basins on it, the plants are planted in the basins not on the land. In this case, the lease of the land is not prohibited, because this is not leasing the land for farming, and it does not come under the evidences of the prohibition of leasing the land for farming, rather it comes under the evidences that permit Ijara (lease).

Your brother,

Ata Bin Khalil Abu Al-Rashtah

The link to the answer from the Ameer's Facebook page