Public Ownership

প্রশ্ন · Question

Assalaamu Alaikum our honourable Sheikh, I would like to ask you a
question regarding public ownership. Can a private ownership transfer
to a public ownership in accordance to the Shariah rules, like
transferring water springs from a private ownership into public
property if that is needed for the public good? And if the public no
longer needs it, does it revert as private property? Similar to oil wells
when they are depleted, can they become a private property?

Thank you, and May Allah help you and make your foothold strong, Wa
Assalaamu Alaikum Wa Rahmatullah Wa Barakatuhu

উত্তর · Answer

Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu,
If any type of public ownership was as a result of a divine reason
(‘illah), then the rule will follow this divine reason, whether it exists or
in its absence. If the ‘illah is present then that public ownership will
remain, but if it was absent, then it will be permitted to privately own
that type of property, however on the condition that the ‘illah is Shar’i
found in a Shar’i text.
For example, public utilities are considered as public property, which
have been explained by the Prophet ﷺ in the Hadeeth in terms of its
description, and not its quantity: On the authority of Ibn Abbas that
the Prophet ﷺ said:
«ي الماء والكلأ والنار
ي ثلاث ف
المسلمون سُِكاء ف »
“People are partners in three: Water, Pasture, and fire.” Narrated by
Abu Dawoud and narrated by Anas from the Hadeeth of Ibn Abbas and
he added: «وثمنه حرام » “And its price is Haram”.
Ibn Majah narrated from Abu Huraira that the Prophet ﷺ said:
«
“Three that must not be prevented: Water, Pasture, and Fire.”
This is the evidence that people are partners in water, pasture, and
fire; and that they are not permitted for ownership by individuals.
However, the Prophet ﷺ permitted individuals to own water in Ta’if
and Khaibar, and they did so to irrigate their plants and fields.
Similarly, some Muslims privately owned wells in Medina; Bukhari
narrated on the authority of Abdullah (ra) from the Prophet ﷺ that he
said:

«مَنْ حَلَفَ عَلََ يَمِيْ ٍ يَقْتَطِعُ بِهَا مَالَ امْرِئٍ مُسْلِمٍ، هُوَ عَلَيْهَا فَاجِرٌ، لَق ِيَ اللَّهَ وَهُوَ عَلَيْهِ
غَضْبَانُ »
“Whosoever gives oaths falsely to take the wealth of a Muslim
illegitimately, he is a fajir (wicked), and will meet Allah while He ﷻ is
angry with him.”
And Allah ﷻ revealed:
﴿يْمَانِهِمْ ثَمَنًا قَلِيلًَ
َ
إِنَّ الهذِينَ يَشْي َُونَ بِعَهْدِ اللَّهِ وَأ ﴾
Indeed those who exchange the covenant of Allah and their [own]
oaths for a small price.” [Al-i-Imran: 77]
Al-Ash’ath came and said: An Ayah was revealed about what Abu
Abdul Rahman spoke to you about me, I had a well in the land of my
cousin, he asked: «شُهُودَكَ » “Your witnesses”, I said I do not have
witnesses, he said: «فَيَمِينُهُ» “his oath (is required)”, I said: O
Messenger of Allah, then he must give an oath, then the Prophet ﷺ
mentioned this Hadeeth, and Allah ﷻ revealed the Ayah to support His
truth.” End quote
If partnership in water, in and of itself, and not because of the need for
it, it would have not been permitted for individuals to own it. From the
saying of the Prophet ﷺ:
ي الماء
ي ثلاث ف
«
“People are partners in three: water…”
And the permission given by the Prophet ﷺ to individuals to own
water, this extracts the ‘illah in the partnership in water, pasture and
fire, and it is from the public utilities that people can not live without.
Hence the Hadeeth has mentioned three but they are based on ‘illah
because they are public utilities. Therefore this ‘illah follows what is
reasoned in its existance and absence; so anything that is considered
as public utility is considerd as public property, but if it is not

considered as public utility even if it was mentioned in the Hadeeth
like water, then it is not public property, but it is considered as
property that can be privately owned. Public utilities are decided when
all resources are not available for a group of people, whether it is a
group living in house made of tents, or living in a village or city or a
state, and have disputed to get it, is considered public utility, like water
source, pastures or woods, grazing areas for cattle, and the like.
-e.g. Minerals are considered as public property if found in abundance,
like in mines and the like, these minerals are public property, and it is
not permitted to be owned by individuals, due to what Tirmithi
narrated from Abyadh Bin Jamal:
«أنه وفد إلَ رسول r، فاستقطعه الملح فقطع له، فلما أن ولَه، قال رجل من
المجلس: أتدري ما قطعت له؟ إنما قطعت له الماء العِدّ ، قال: فاني عه منه »
“He came to the Prophet ﷺ and asked to assign him a salt (mine), so
He ﷺ did, when he left, a man from his ﷺ council said: Are you
aware of what you assigned him? You assigned him a perennial (‘id)
spring of water, he said: so he took it back from him.”
“’Id” water is the continuous source of water, he drew the similarity
between salt and water for its unlimited source. This Hadeeth is an
evidence that the Prophet ﷺ has given a portion of mountain salt for
Abyadh Bin Jamal, but when he ﷺ found out that the mineral is
unlimited, he took it back from him and prevented its private
ownership, i.e. it is public property. Salt here is an example of a
mineral, what is intended is the mineral not the salt. From this
Hadeeth it is clear that the ‘illah of prevention of giving the portion of
the mineral of salt is that it is ‘Id i.e. unlimited.
This ruling, that the unlimited mineral is a public property, which
includes all minerals whether they are on the surface and easily
accessed that people frequent and use, like salt, coal, emerald and the
like, or it was found underground, that needs to be extracted with

equipment, like gold, silver, iron, bronze, lead, and the like. And
whether it is solid like crystals or liquid like oil, they are are minerals
that come under the Hadeeth. Since unlimited minerals are public
property for all citizens, the state is not permitted to give its ownership
to individuals, companies, or allow individual or companies to extract
them for their own use; instead the state must extract them itself on
behalf of the Muslims, in looking after their affairs, and all that it
extracts from them is public property for all the citizens.
Therefore, the property mentioned in the question will be considered
as public ownership if they are public utilities, e.g. the water well in a
village which is the only source of water, it is a public property and not
allowed for individual ownership… But if the people in the village have
another sufficient source of water, it will be permitted for an individual
to dig a well in his land and own it, because it is not from the public
utilities in this case, i.e. that the ‘illah of its public property is absent.
But the well which was a public property does not become a private
property but remains as a public property and it will be allowed to sell
to individuals if there is sufficient water for the people and then it will
be priced for the private ownership.
Hence, the water well is a public property if the people have no other
source, but if there was an depletes or the people do not need it any
more, i.e. the ‘illah is absent of it being a public utility, by the presence
of a sufficient source of water, then it will be permitted to sell that well
to individuals and it’s priced for private ownership. Oil wells for
example are public utilities as long as it is unlimited, but if there were
depletes, i.e. the ‘illah for being a public property is absent, then it is
allowed to sell this well for people and its price is put for private
ownership.
Your brother,
Abu Yasin

15 Jumada I 1437 AH
24/2/2016 CE