Delegated Legislation

* The legislative functions conducted by executive

which are entrusted by the legislature is delegated
legislation.
* It refers to all law making functions which takes
place outside the legislature.
* Making of rules, regulations, by laws, orders,
directions or notifications by executive or the
authorities to whom the authority is entrusted by
the main law.
* The power to make subordinate legislation is
derived from the enabling Act.

Delegated legislation or Subordinate legislation is

intended to fill up details.
* Rules, regulations etc. are in aid of enforcement of
the provisions of the main statutes.
* Every administrative difficulty can not be foreseen
after the statute has begun to operate. So there lies
the feed for delegated legislation.
* Legislation is either supreme or subordinate
Salmond.
* Subordinate legislation is that which proceeds from
an authority other than the sovereign power and is
therefore dependent for its continued existence and
validity on some superior or supreme authority

 Delegated legislation means a legislation which

is passed by a body to which the power of
legislation is delegated by the status.
* Delegation of power means those powers, which
are given by the higher authority to make
certain laws, i.e, powers given by the
legislature to administrative to enact laws to
perform administrative functions.

Scope of Delegated Legislation

* Scope of delegated legislation is limited to the parent
Act and how much power is granted by the parent
Act.
* The scope of delegated legislation is up to
enforcement of the main objects of the parent Act.
The legislature is the master of legislative policy, and
if the delegate is free to switch policy it may be
usurpation of legislative power itself.
* Legislature must retain in its own hands the
subordinate legislation necessary for implementing
the purpose and objects of the Act.

Tests for valid legislative power are:

1. Legislature cannot efface itself,
2. Legislature cannot delegate the plenary or
essential legislative function,
3. Even if there is delegation, parliamentary
control over delegated legislation should be a
living continuity as a constitutional necessity.
* In case of conflict between a substantive Act and
delegated legislation the former shall prevail.

Compensation
American courts have held that the preferred measure of "just
compensation" is "fair market value," i.e., the price that a willing but
unpressured buyer would pay a willing but unpressured seller in a
voluntary transaction, with both parties fully informed of the property's
good and bad features. Also, this approach takes into account the
property's highest and best use (i.e., its most profitable use) which is not
necessarily its current use or the use mandated by current zoning if there
is a reasonable probability of zone change.
This measure of compensation has been severely criticized because it
omits from consideration a variety of incidental economic losses that a
taking of land inflicts on its owners when they are evicted from their
homes and businesses. The most egregious example of such
uncompensated losses is provided by the American law that denies any
compensation to owners of businesses that are destroyed when land on
which they are located is taken, and the business cannot relocate. A small
minority of states have provided by statute that at least some business
losses are compensable.

Also, attorneys' and appraisers' fees are not recoverable (except in Florida) so the
owners of the taken property never recover the full value of the taken land, even if
they prevail in the valuation trial, because a part of their recovery must be used to
pay their lawyers and appraisers. Some states do provide for limited recovery of
such litigation expenses, typically when the owners' recovery substantially exceeds
the amount of the condemnor's pretrial offer or the evidence presented by the
condemnor at trial by a specified percentage. Also, when a condemnation action is
abandoned, the owners are typically entitled (by statute) to be paid reasonable
attorneys' and appraisers' fee they had to incur in defending the condemnation
action while it was pending.
When payment of compensation is delayed, the owner of the taken land is entitled
to receive interest on the award of compensation, that accrues from the time of
taking to the time of payment. The interest must be reasonable, so that when
prevailing market rates of interest exceed the statutory rate (as in inflationary
times), the former have to be used.
The U.S. Supreme Court takes the position that unlike the determination of what is
a "public use," the determination of compensation is a judicial, not legislative,
function, but legislatures are free to provide for more liberal awards of
compensation than the constitutional minimum determined by courts.

Partial takings

In cases of partial takings of land, the owners are entitled to compensation for the taken part, plus
severance damages (the diminution of value of what remains of their property after the taking). If
the partial taking creates special benefits (i.e., it causes an increase in the value of the remaining
land) their value is offset against compensation, with the majority of states allowing such offsets
only against severance damages, so in those states, the owner always gets paid for the taken land.
When a partial taking causes impairment of access to the remainder land, that gives rise to a
contentious issue because courts take the position that diminution in value caused by impaired
access is compensable only when the impairment is substantial. Traffic regulations that affect
access (one-way streets, median dividers, etc.) are deemed exercises of the police power and are
not compensable.
In addition to fee simple titles, all interests in property (easements, leaseholds, etc.) are
compensable. The measure of value of a leasehold is the amount by which prevailing comparable
rentals in the area exceed the actual contracted-for rent. This amount is known as "bonus value" of
a lease. It is calculated over the remaining life of the lease and then reduced to its present value.
The measure of compensation for an easement is the difference in the value of the subject land as
unencumbered and as encumbered by the easement.
In determining value, zoning and other land-use regulations are considered, but if it appears that
there is a reasonable probability of zone change to a higher use, that may be shown and in that
case the owner is entitled to an additional increment of value (the extra amount over and above
the value under current zoning, that the market would pay now because of the probability of future
rezoning).

Value fixation

The appraisal profession recognizes several different methods of calculating value, but courts
are largely stuck in the convention of using three valuation approaches: (a) market data
analysis or comparable sales value, (b) the capitalization of rentals, and (c) the reproductionless-depreciation approach under which the cost of reproducing the improvements on the
property is estimated and then depreciated to allow for wear and tear and functional or
economic obsolescence. The value of the land is then added to the value of the reproduced,
depreciated improvements. Some states allow compensation as the cost of reproduction
without depreciation, but only in cases where the subject property, though privately owned,
performs an important public or charitable function.
The U.S. Supreme Court has indicated (U.S. v. Cors) that it is not its intention to make a
"fetish" out of market value as the measure of compensation, and that other approaches
may be used when conventional methods do not work, or if applied, would create an
injustice (Pewee Coal v. United States). But this appears to be a hortatory, rather than
doctrinal statement. These situations, however, are extremely rare.
Studies in several parts of the country (California, Georgia, Minnesota, New York and Utah)
have demonstrated that condemning agencies frequently undercompensate property
owners, and that those owners who reject the pre-litigation offers and go to court tend to
recover substantially higher awards, whether by judges or juries

Tax implications
When private property is destroyed, stolen,
condemned, or disposed of, the owner may
receive a payment in property or money in the
form of insurance or a condemnation award.[ If
property is compulsorily or involuntarily
converted into money (as in eminent domain) the
proceeds can be reinvested without payment of
capital gains tax provided it is reinvested in
property similar or related in service or use to the
property so converted, no capital gain shall be
recognized.

Bush executive order

On June 23, 2006, the first anniversary of the Kelo decision
(see above), President George W. Bush issued Executive
Order 13406 which stated in Section I that the federal
government must limit its use of taking private property for
"public use" with "just compensation," which is also stated
in the constitution, for the "purpose of benefiting the
general public." The order limits this use by stating that it
may not be used "for the purpose of advancing the
economic interest of private parties to be given ownership
or use of the property taken. However, eminent domain is
more often exercised by local and state governments, albeit
often with funds obtained from the federal government.

Canada
In Canada, expropriation is governed by federal or
provincial statutes. Under these statutory regimes, public
authorities have the right to acquire private property for
public purposes, so long as the acquisition is approved by
the appropriate government body. Once property is taken,
an owner is entitled to "be made whole" by compensation
for: the market value of the expropriated property,
injurious affection to the remainder of the property (if any),
disturbance damages, business loss, and special difficulty
relocating. Owners can advance claims for compensation
above that initially provided by the expropriating authority
by bringing a claim before the court or an administrative
body appointed by the governing legislation.

Europe
In many European nations, the European Convention on
Human Rights provides protection from appropriation of
private property by the state. Article 8 of the Convention
provides that "Everyone has the right to respect for his private
and family life, his home, and his correspondence" and
prohibits interference with this right by the state, unless the
interference is in accordance with law and necessary in the
interests of national security, public safety, economic wellbeing of the country, prevention of disorder or crime,
protection of health or morals, or protection of the rights and
freedoms of others. This right is expanded by Article 1 of
the First Protocol to the Convention, which states that "Every
natural person or legal person is entitled to the peaceful
enjoyment of his possessions.". Again, this is subject to
exceptions where state deprivation of private possessions is in
the general or public interest, is in accordance with law, and,
in particular, to secure payment of taxes. Settled case-law of
ECHR provides that just compensation has to be paid in cases
of expropriation.

France
In France, the Declaration of the Rights of
Man and of the Citizen similarly mandates just
and preliminary compensation before
expropriation; and a Dclaration d'utilit
publique is commonly required, to
demonstrate a public benefit.

United Kingdom

Compulsory purchase in England and Wales

After his victory in 1066, William the Conqueror seized virtually all land in England.
Although he maintained absolute power over the land, he granted fiefs to
landholders who served as stewards, paying fees and providing military services.
During the Hundred Years War in the 14th century, Edward III used the Crown's
right of purveyance for massive expropriations. Chapter 28 of Magna
Carta required that immediate cash payment be made for expropriations. As the
king's power was broken down in the ensuing centuries, tenants were regarded as
holding ownership rights rather than merely possessory rights over their land. In
1427, a statute was passed granting commissioners of sewers in Lincolnshire the
power to take land without compensation. After the early 16th century, however,
Parliamentary takings of land for roads, bridges, etc. generally did require
compensation. The common practice was to pay 10% more than the assessed
value. However, as the voting franchise was expanded to include more nonlandowners, the bonus was eliminated. In spite of contrary statements found in
some American law, in the United Kingdom, compulsory purchase valuation cases
were tried to juries well into the 19th century. DeKeyser's Royal Hotel v. The King
(1919).

Cont..
Allodial title is the title to land generally held in fee simple by an individual
or group that is sovereign on that land. Thus, in English law, only the
monarch holds allodial title. All others are tenants of the sovereign
through their feudal vassalages. Sovereigns generally gain allodial title
either by grant of another sovereign to such title, or through right of
conquest.
In England and Wales, and other jurisdictions that follow the principles
of English law, the related term compulsory purchase is used. The
landowner is compensated with a price agreed or stipulated by an
appropriate person. Where agreement on price cannot be achieved, the
value of the taken land is determined by the Lands Tribunal, a court
consisting of one barrister and two chartered surveyors. The operative law
is a patchwork of statutes and case law. The principal Acts are the Lands
Clauses Consolidation Act 1845, the Land Compensation Act 1961,
the Compulsory Purchase Act 1965, the Land Compensation Act 1973, the
Acquisition of Land Act 1981, part IX of the Town and Country Planning Act
1990, the Planning and Compensation Act 1991, and the Planning and
Compulsory Purchase Act 2004.

Germany
The Basic Law for the Federal Republic of
Germany states in its Article 14 (3) that "an
expropriation is only allowed for the public
good" and just compensation must be made.
It also provides for the right to have the
amount of the compensation checked by a
court.

Australia
In Australia, section 51(xxxi) of the Australian Constitution permits
the Commonwealth Parliament to make laws with respect to "the
acquisition of property on just terms from any State or person for
any purpose in respect of which the Parliament has power to make
laws."This has been construed as meaning that just compensation
may not always include monetary or proprietary recompense,
rather it is for the court to determine what is just. It may be
necessary to imply a need for compensation in the interests of
justice, lest the law be invalidated.
Property subject to resumption is not restricted to real estate as
authority from the Federal Court has extended the states' power to
resume property to any form of physical property. For the purposes
of section 51(xxxi), money is not property which may be
compulsorily acquired. A statutory right to sue has been considered
"property" under this section

Contd

he Commonwealth must also derive some benefit from the property acquired,
that is, the Commonwealth can "only legislate for the acquisition of Property for
particular purposes". Accordingly, the power does not extend to allow legislation
designed merely to seek to extinguish the previous owner's title. The states and
territories' powers of resumption on the other hand are not so limited. The section
43(1) of the Lands Acquisition Act 1998 (NT) grants the Minister the power to
acquire land 'for any purpose whatever'.[The High Court of Australia interpreted
this provision literally, relieving the Territory government of any public purpose
limitation on the power. This finding permitted the Territory government to
acquire land subject to Native Title, effectively extinguishing the Native Title
interest in the land. As noted by Kirby J in dissent and a number of commentators,
this represents a missed opportunity to comment on the exceptional nature of
powers of resumption exercised in the absence of a public purpose limitation.
The term resumption is a reflection of the fact that, as a matter of Australian law,
all land was originally owned by the Crown before it was sold, leased or granted
and that, through the act of compulsory acquisition, the Crown is "resuming"
possession.

India

The Constitution originally provided for the right to property under Articles 19 and
31. Article 19 guaranteed to all citizens the right to 'acquire, hold and dispose of
property'. Article 31 provided that "No person shall be deprived of his property
save by authority of law." It also provided that compensation would be paid to a
person whose property had been 'taken possession of or acquired' for public
purposes. In addition, both the state government as well as the union (federal)
government were empowered to enact laws for the "acquisition or requisition of
property" (Schedule VII, Entry 42, List III). It is this provision that has been
interpreted as being the source of the state's 'eminent domain' powers.
The provisions relating to the right to property were changed a number of times.
The 44th amendment act of 1978 deleted the right to property from the list of
Fundamental Rights. A new article, Article 300-A, was added to the constitution
which provided that "no person shall be deprived of his property save by authority
of law". Thus, if a legislature makes a law depriving a person of his property, it will
not be unconstitutional. The aggrieved person shall have no right to move the
court under Article 32. Thus, the right to property is no longer a fundamental right,
though it is still a constitutional right. If the government appears to have acted
unfairly, the action can be challenged in a court of law by citizens.[

India
Land acquisition in India is currently governed by The
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
which came into force from 1 January 2014. Till 2013,
land acquisition in India was governed by Land
Acquisition Act of 1894.
The liberalisation of the economy and the
Government's initiative to set up special economic
zones have led to many protests by farmers and have
opened up a debate on the reinstatement of the
fundamental right to private property.[

Pakistan
Under the Land Acquisition Act, 1894, the
government has the power to compulsorily
acquire private land at the prevailing market
rate for public purposes such as roads,
highways, railways, dams, airports, etc.

Other countries

Many countries recognize eminent domain to a much lesser extent than the English-speaking
world or do not recognize it at all. Japan, for instance, has very weak eminent domain
powers, as evidenced by the high-profile opposition to the expansion of Narita International
Airport, and the disproportionately large amounts of financial inducement given to residents
on sites slated for redevelopment in return for their agreement to leave, one well-known
recent case being that of Roppongi Hills.
There are other countries such as the People's Republic of China that practice eminent
domain whenever it is convenient to make space for new communities and government
structures. Singapore practices eminent domain under the Land Acquisitions Act which
allows it to carry out its Selective En bloc Redevelopment Scheme for urban renewal.
The Amendments to the Land Titles Act allowed property to be purchased for purposes of
urban renewal against an owner sharing a collective title if the majority of the other owners
wish to sell and the minority did not. Thus, eminent domain often invokes concerns
of majoritarianism.
Since the 1990s, the Zimbabwean government under Robert Mugabe has seized a great deal
of land and homes of mainly white farmers in the course of the land reform movement in
Zimbabwe. The government argued that such land reform was necessary to redistribute the
land to Zimbabweans dispossessed of their lands during colonialism - these farmers were
never compensated for this seizure

Nepal
Right to property
Land Acquisition Act 2034