Current Legal Issues
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- (21) Rules of Roads Constructed by Government
(66) It is permissible to use the roads and pavements
constructed on previous sites of private property bought by the government, who demolished
them, to build such roads.
Of course, whomsoever knew of a private property that was forcibly owned by the
government, without having the landlords consent by way of compensation or the like,
the rules regarding usurped land apply. In this case, it is not permissible to use such a
site, even walk in it, without prior consent of the original owners or their guardian,
from their immediate relatives - e.g. father, grandfather - or anyone appointed by them.
If the owner is unknown, it should be treated as majhoulil malik, where the advice
of the Marji should be sought. The same ruling applies to the remnants of
property, in that it is not permissible to have free hand in them, except with the
permission of their owners.
(67) It is permissible to cross or go through lands belonging
to mosques that are situated on roads. Similarly, it is permissible to sit in them or do
any other [lawful] acts. The same goes for the lands of Hussainiyyas, cemeteries
and similar public endowment places.
As for lands belonging to schools and the like, there is ishkal in the
permissibility of having the same access [as in mosques, cemeteries and Hussainiyyas
discussed above], except for those purposes and persons stipulated in the endowment deed.
(68) The land of mosques falling within the site of a road
under construction will still be considered endowment (waqf). It is to be noted,
however, that rules concerning mosques, be they in use or not, should be upheld. These are
non-permissibility of defiling them, obligation to removing uncleanness (najasah)
from within their precincts, non-permissibility for a woman who is in haydh or nifas
to stay there, non-permissibility of a man who is najis to stay in them, etc.
As for the remnants [ruins] thereof, if they are not outside the pale of what is
generally accepted as a mosque, the rules governing the mosques should still carry weight.
In case it is no longer what you can term as mosque, for example they were turned into
shops, houses, etc. by the oppressor (adh-Dhalim), the rules in question do not
apply to them. It is, therefore, permissible to use them, in any manner lawful, except
that which perpetuates the state of them being maghsoub; it is not permissible.
(69) If what was left of the mosques furniture,
equipment, tools and appliances, building material, etc. after its demolition, had
originally been confined to its sole use, by way of endowment deed, it is obligatory to
make use of them in another mosque. Should this not be possible, they must be donated to
other public places. In case the latter cannot possibly be done, they should be sold and
the proceeds be spent on other mosques.
If what was left of the mosques fixtures were originally of its own property,
since they (in kind) were bought for the sole use of the mosque by way of endowment deed,
it is not obligatory to use them (in kind) in another mosque. Rather, it is permissible
for the guardian or any authorised person, as they deem fit, to sell them and spend the
proceeds on another mosque.
The rules that have been discussed here should apply to the fixtures of schools, Hussainiyyas
and other public places, previously occupying sites that were later used to build roads
(70) The rules pertaining to Muslim cemeteries, previously
occupying sites that were later used to build roads on, be they private property or public
endowments, have already been discussed. This is the case, if crossing or going through
their territory does not amount to desecrating the dead. Otherwise, it is not permissible.
If they were neither private property nor public endowment, there is no harm in making
use of them, provided the act does not constitute desecration.
The same goes for the remnants of land thereof. That is, on the first assumption, it is
not permissible to dispose of it or sell it, except with the permission of their owner. On
the second assumption, it is not permissible, except with the permission of the guardian
or whoever in his capacity. The proceeds of sale should be spent on other Muslim
cemeteries, taking into account the intimate closeness of relatives as first priority, as
a matter of ihtiyat.
On the third assumption, it is permissible without the permission of anyone, except
where it does not amount to having free hand in other peoples property, such as the
sites of demolished graves.