(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of his Facebook Page Followers "Fiqhi")
To Umm Mus’ab al-Ja’bari
Question:
Assalamu Alaikum Wa Rahmatullah Wa Barakatuh. I would like to ask regarding lands: What is the difference between land where the raqabah (ownership of the substance) and manfa'ah (usufruct) belong to the individual, and land where the manfa'ah belongs to the individual while its raqabah belongs to the State? May Allah reward you with goodness.
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh.
There is no difference between 'Ushri land and Kharaji land; they are the same except in two matters:
The owner of 'Ushri land owns both its raqabah (substance) and its manfa'ah (usufruct), whereas the owner of Kharaji land owns its manfa'ah only and does not own its raqabah. Consequently, if the owner of 'Ushri land wishes to make his land a waqf (endowment), he can do so at any time he chooses, because he owns its 'ayn (physical substance/essence), i.e., its raqabah. However, if the owner of Kharaji land wishes to make his land a waqf, he cannot do so. This is because a condition for waqf is that the person making the endowment must own the substance of what he is endowing. The owner of Kharaji land does not own the substance of the land (raqabah); he only owns its usufruct (manfa'ah), as its raqabah belongs to the Bait al-Mal (the State Treasury).
On 'Ushri land, Zakat is obligatory (the tithe or half-tithe)... as for Kharaji land, it is subject to Kharaj (land tax).
Other than that, they are the same; the owner disposes of them according to the rules of Sharia: through buying, selling, inheritance, etc.
Your brother, Ata Bin Khalil Abu Al-Rashtah
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