Every landlord is obliged to use his land. The owner, who is in need of help for using the land, is helped by the Bait ul-Mal. If He neglects the use of the land for three continuous years it is taken from Him and given to another person. ’Umar ibn Al-Khattab said: “The one who fences (something) has no right in it after three years.” Yahya ibn Adam reported from Amru ibn Shu’aib, who said: “The Prophet (pbuh) granted land to some people from Mazina or Johaina and they neglected it. Other people came and cultivated it. ’Umar said: ‘If the land was granted by me or by Abu Bakr, I would have returned it back (to those people). But since it was granted by the Messenger of Allah (pbuh) I would not.’ And He said: ‘Whoever neglected a land for three years without using it and another person came and used it, it becomes his.”’ What is meant by the words of ’Umar is that the land was not used for more than three years. If it was a grant from Abu Bakr, then less than three years had passed and if it was from ‘Umar, less than three years had passed as well. As a grant from the Messenger of Allah (pbuh), however more than three years had passed, so it could not be returned back to those who were given the grant.

Abu Ubayd reported in the book of Al-Amwal from Bilal ibn al-Harith al-Muzni that the Prophet (pbuh) had granted Him all of al-Aqeeq. He said that during the time of ’Umar, He (’Umar) said to Bilal, “The Messenger of Allah (pbuh) did not grant you the place to fence it against the people but to use it. So take of it as much as you can afford and return the rest of it.” Therefore it is Ijma’a of the Sahabah that whoever neglected his land for three years, would have the land taken away from Him and given to another person.

In this way the landlord is allowed to plant upon his land by use of his tools, seeds, animals and labour; and He has the right to employ labourers to work on it. If He cannot use it then the State may help him. If the landlord does not do this He has to give it to another person, to plant upon it, as a grant without recompense. If He does not do this and He keeps hold of it He is given a period of three years. If He neglects it for three years, the State will take it from Him and grant it to someone else. It is narrated by Yahya ibn Adam in the book of Al-Kharaj that Yunus narrated from Muhammad ibn Ishaq from ’Abdullah ibn Abu Bakr, who said: “Bilal ibn al-Harith ibn al-Muzni came to the Messenger of Allah (pbuh) and asked that He grant Him a certain land; the Prophet (pbuh) granted Him a large piece of land. When ’Umar took the authority He said to Bilal, ‘O Bilal you asked the Messenger of Allah (pbuh) to grant you large land so He granted it to you; and the Messenger of Allah (pbuh) was not used to holding back anything He was asked to give and you can’t manage this land.’ Bilal said: ‘Yes.’ ’Umar said: ‘So look at the part which you can manage and hold it, and the part which you are not able to use give it to us so as to divide it amongst Muslims.’ Bilal said: ‘I swear by Allah I will not do that to a land the Messenger of Allah (pbuh) gave to me.’ ’Umar said: ‘By Allah you must do it.’ So ’Umar took from Him the part He could not use and divided it amongst the Muslims.” It is quite clear that the person who owns land but cannot plant upon it and who neglects it for three years, will have it taken from Him by the State and given to another person, as ’Umar ibn Al-Khattab had done with Bilal al-Muzni with regard to the land of the mines of al-Qabliyah.

In conclusion, land is owned by fencing, by granting from the Khalifah, by cultivation, by inheritance and by trading. The texts, which came concerning taking the land from the one who neglected it for three years, have mentioned the one who fenced the land, and the one who was granted the land by the Khalifah. They did not mention other types of landlords, such as the inheritor, the one who cultivates the land and the buyer. So, does ignoring any land for three years owned by a person allow the Khalifah to take it from Him and give it to another? Alternatively, is this specific to the one who fenced a dead land, and the one who was granted the land by the Khalifah? To answer this question we notice that fencing of the land is like buying it or inheriting it or any other means of ownership from the angle of disposal of the land, and possession of it. If the one who fenced the land sold it He would own its price because it is a right in exchange of property, so it is allowed to be recompensed for it. In addition, if the one who fenced the land died, the ownership of the land is transferred to his inheritors like the rest of the properties which they dispose of, and they are divided amongst them according to the Shari’ah rules. This is also similar to the one to whom the Khalifah grants a piece of land. Therefore, the one who fences a land and the one who is granted a land, do not have any specific merit that distinguishes them from the other landlords, which would make taking the land from them, if it was neglected for three years, specific to them to the exclusion of the rest of the landlords, who own the land through other means of ownership. Nor do they have that merit that makes the fencing and the granting of land as a constraint for taking the land if it was neglected for three years. With regards to the argument that the texts specifically mentioned them alone, this does not indicate constraint, because this is not a description, which means that taking the land from the one who neglects it, is only because He owned it by fencing or granting. It is rather a text that stated one single member of the Mutlaq (unrestricted), where land is taken from one type of owner if He neglects it. The text is general and mentioning ownership by fencing and granting is just a mention of one member of the Mutlaq (unrestricted) not a restriction that excludes other than them. However, if the text came regarding an incident, it has to be examined. If it included reasoning, then it becomes a general text in the reasoned matter. The text in question indicates reasoning, which is taking the land after three years because of neglecting its farming. The neglect of the land for three years is the reason (Illah) for taking it. The reason for taking the land from the one who fenced it is thus because He neglected it for three years, not because He is an owner by fencing, or because He is an owner by fencing who neglected the land. Fencing of the land does not indicate it is the reason for taking it, neither by itself (fencing) nor by combining it with neglecting. Rather neglecting alone is the matter which indicates the reason (Illah) for taking it. Thus neglecting the land is a reason (Illah) which revolves with the reasoned rule, in existence and absence. Wherever neglecting of the land by its owner for three years occurred, it would be taken from Him whether He owned it by fencing or by granting or by inheritance or by any other means. If the owner by fencing did not neglect his land for three years it would not be taken from him.

In addition, fencing of the land as mentioned by ’Umar (ra.) in the Hadith of the Messenger of Allah (pbuh): “Anyone who fences a land (Muhtajir) has no....” is an indirect expression of its ownership; as it is usual that the owner of the land fences the land by encircling its borders with stones, so as to be known as his property, and be differentiated from the property of others. It is not a condition that He puts stones around it so as to be called a fencer. Rather, to put plants or trees on the borders of the land or to dig a ditch, or carry out any work which indicates that He possesses it, all this is called (Ihtijar), and the one who does that to a land is called a fencer (Muhtajir). The Messenger of Allah (pbuh) says in another Hadith that is narrated by Abu Dawud: “Whoever encircled a land by a fence...” The Hadith implies that walling (fencing) of the land is an indirect expression of its ownership, according to the linguistic meaning of the word “fenced.” Linguistically, the word Ihtajara refers to something one puts in his lap or embraces. Ihtijara (walled) with respect to a land, means one embraced it, meaning ownership of it. Therefore the meaning of the Hadith will be that whoever embraced a land (owned it), has no right after three years, whether He put stones on its borders, or He encircled it by a fence, or He did anything that indicates his ownership of it.

This is the argument with regard to the text. However, with regard to what ’Umar followed, and the rest of the companions kept silent on, ’Umar ordered that the land which the Messenger of Allah (pbuh) granted to Mazina which others cultivated, be given to those who cultivated it, and He prevented Mazina from taking it. He also said: “Whoever neglected a land for three years without cultivating it, and some other person cultivated it, it would be his.” This speech of ’Umar is general, as He said: “Whoever neglected a land…” He also said to Bilal ibn al-Harith al- Muzni “The Messenger of Allah (pbuh) did not grant you land to fence it against the people, rather He granted it you to use it, so take the part which you can manage, and return the rest of it.” He actually took from Him that which He was unable to use. Limiting this decision to granted land alone without a clear evidence of specification is not allowed, rather it should stay general. The fact that the incident occurred with the person who was granted the land is just an expression about an incident, and is not limited to that incident.

Therefore, every landlord who neglects the land for three years has his land taken from Him and given to another, whatever his means of ownership of the land was.What matters is the neglecting of the land and not the means of its ownership. It is not true to say that this means taking the property of people without right. This is because Shar’a gave land ownership a meaning different to that of the ownership of moveable properties or the ownership of buildings: it made land ownership for cultivating it. If it was neglected for the period determined by the Shar’a, then the landlord would have ignored the meaning of its ownership. Shar’a has made the ownership of the land for farming whether by cultivation, granting, inheritance, buying or other means. It also made the stripping of the ownership of it, by negligence. This is all for the purpose of continual farming and use of the land.