Chapter: Reclaiming Uncultivated Land

Shaykh al-Islām—may Allah have mercy on him—was asked:

What is the ruling on building on a wide Muslim public thoroughfare if the construction does not harm passersby?

He replied:

There are two cases:

The first is building for one’s own use. This is not permissible according to the well-known position in Ahmad’s school. Some, however, have permitted it with the ruler’s authorization.

Al-Qādī Abū Ya‘lā discussed this question—and I copied his account from his own handwriting—stating that it had arisen in his day and that the muftis had given conflicting answers. In discussing a case concerning a wide thoroughfare, he considered whether the ruler may authorize someone to appropriate part of it. He explained that some had ruled this permissible, while others had ruled it impermissible. Al-Qādī adopted the latter position and stated that it was Ahmad’s own expressed view.

For Ahmad said, as reported by Ibn al-Qāsim:

“Once people have used a route so that it has become a thoroughfare, no one may appropriate any part of it, however small or large.”

He was asked: “Even if it is wide, like the main streets?”

He replied: “Even if it is wide.”

He said: “This is more serious than encroaching upon a boundary