Theory of Legitimate Expectation

The theory of Legitimate Expectation is one of the core branches of Administrative Law. Its origin was very recent and was adapted to a long list of the concepts which are fashioned by the courts for the review of administrative actions. Now in some of the courts around the world it has very easily accepted such as English, Irish and Indian courts but on the other hand it has been out rightly rejected such as in Australia and Canada.

“It belongs to the domain of public law and is intended to give relief to the people when they are not able to justify their claims on the basis of law in the strict sense of the term through they had suffered a civil consequences because their legitimate expectation had been violated.” [1]

This term was first time used by Lord Dennings in the year 1969 and from that time onwards it has made a very significant position of a important doctrine of the public law in all form of jurisdictions. The principle of the Legitimate Expectation means that expectations raised by administrative conduct have to be respected and fulfilled at least for the public interest and betterment demands otherwise. And non-fulfillment can have some serious legal consequences. The main role played by the Courts in the entire transaction of this doctrine is to safeguard the individual’s expectations in the face of change of the policy.

“They have to ensure that the individual’s expectations are fulfilled mutatis mutandis the Governmental Policies. The theory is an enlargement of principles of Natural Justice. Precisely speaking, the Government and its Departments, in administering the affairs of the country are expected to honor their statements of policy or intention. The policy statement cannot be disregarded unfairly. Unfairness and arbitrariness are akin to violation of principles of natural justice.” [2]

In very famous English case Council of Civil Service Union v. Minister for Civil Service [3] , Lord Diplock, has explained the doctrine of legitimate expectation, both in procedural and substantive contexts.

“Procedural: The procedural part of it relates to a representation that a hearing or other appropriate procedure will be afforded before any decision is made.

Substantive: The substantive part of the theory is that if a representation has been expressly made that a benefit of a substantive nature will be granted or if any person is already in receipt of any benefit, it will be continued and will not be substantially varied to the disadvantage of the recipient.” [4]

This was further explained in an Indian case of National Building Constructions Corporation v. S Raghunathan [5] , where it was held that

“Legitimate Expectation is a source of both, procedural and substantive rights. The person seeking to invoke the doctrine must be aggrieved and must have altered his position. The doctrine of legitimate expectation assures fair play in administrative action and can always be enforced as a substantive right. Whether or not an expectation is legitimate is a question of fact.” [6]

In this paper I will try to answer some of the important question relating to the function of Doctrine of the Legitimate Expectation in India .

The limits of the application of the doctrine of legitimate expectations under current Indian Administrative law.

What are the rationales underlying the concept of legitimate expectations?

And finally, why should legitimate expectations be protected? Should the concept of legitimate expectations be expanded, if so, how?

The limits of the application of the doctrine of legitimate expectations under current Indian Administrative law

“In India the doctrine has been under article 14 of the Constitution. Under this article this state’s constitutional provisions imposes the duty to act fairly on all public authorities and therefore, people can have legitimate expectation that they will be treated fairly by the states.” [7]

Also Supreme Court of India in the case of Food Corporation of India vs Kamdhenu Cattle feed Industries [8] the court states that “in all the state actions, the state and its instrumentalities have to conform to Art. 14 of the Constitution of which non-arbitrariness is a significant fact.”

The Supreme Court further went to state that the expectation of the claimant is “reasonable or legitimate in the context is a question of the fact in each case.” Whenever such question arises “it is not to be determined according to the claimant perception but in larger public interest wherein other more important consideration may outweigh what would serve as the legitimate expectation of the claimant. [9]

In the case of Hindustan Development Corporation [10] where various tender were called for the supply of wagon to the railway. Now as there were both big and small manufacture involved. Three of the big manufactures quoted the price of the wagon less what the small manufactures have quoted. Then after that railway authority adopted a dual pricing policy where they provided counter offers for the big manufactures at the lower rate and provided higher rates to other so there can be an equal competition in the bidding. The three big manufactures claimed that they are also entitled for to a higher rate and also for a large order of the wagons. Now in this case Supreme Court of India held that

“ the change in the price policy was not invalid and was based on the reasonable and rational grounds. So on the basis of the doctrine of the Legitimate Expectation it observed that Legitimate Expectation is not the same thing as anticipation. It is also different from a mere wish or desire or hope. A mere disappointment would not give rise to legal consequence.” [11]

The court further ruled that “the legitimate expectation can be inferred only if it is founded on the sanction of law or custom or an established procedure followed in regular and natural sequence. Such expectations should be justifiably legitimate and protectable.” [12]

Now in another case of MSN Medical, A corporation granted license to occupy its shops for a period of three years at a time. Now in a bid to maximize its income, the corporation decided to call tenders for these shops. The courts in India ruled that

“As public interest was involved in this exercise there was hardly any scope for application of the principle of legitimate expectation.” Also this means that public interest overrides legitimate expectation of an individual.” [13]

In Punjab Communications Ltd v. Union of India [14] , following has been observed by the supreme court of India in this case.

“….the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regards to the expectation based on previous practice or past conduct unless some overriding public effect comes in the way…. Reliance must have been placed on the said representation and the represented must have thereby suffered detriment.” [15]

And on the basis of the same case Supreme Court of India suggested that this formulation of the doctrine of the legitimate expectation is wrong as it makes this doctrine practically same as promissory estopple. “It may come from the conduct of authority but a promise not always necessary for the purpose.” [16]

Further to see the limits of the application we can consider the case of National bank Construction. [17] Now in this case the Honorable Supreme Court of India has echoed the same statement that has been earlier stated in the Food Corporation case [18] that weather the expectation of the claimant is reasonable in the context of the case. So whenever there is a dispute between the interests of the individual or public interest at large scale is involved, the decision will always be in the favor of the public interest. As the larger public interest is of more importance and outweigh the legitimate expectation of the respondent.

Now another field where the doctrine of Legitimate Expectation does not apply (Limitation) is the contractual field.

“As soon as a contract is concluded, the expectation, if any comes to an end and thereafter the parties are bound only by the terms of the contract. “The doctrine of legitimate expectation has no application in relation to a dispute arising out of a contract qua contract.” [19] In a case where a concluded contract has been arrived at, there cannot be any legitimate expectation that he would be allowed to continue with the contract.” [20]

The doctrine of Legitimate Expectation does not apply against Public Authorities in certain circumstances.

In the administration of the Union territory of Chandigarh, under development scheme plots were allotted and for that partly or full payment was taken. But however it was found that some part of the area of the land which was allotted for the plots was already declared reserved under the forest act. And moreover the land in the question lies just 900 meters from the air force base and thus violates the Aircraft act.

And because of these violations the administration authority failed to deliver the plots to the allotted people. Now this case went to the Supreme Court and the court help that

“The doctrine of legitimate will not be applicable against the public authorities when their mistaken advice or representation is found to be in breach of status and thus, against public interest as regards for the public welfare is the highest law and the law does not compel a man to do that which he cannot possibly perform.” [21]

Now from the above reading we can clearly see that legitimate expectation, as such is very limited in the Indian Administrative system and is yet to form a enforceable right which can provide an independent ground for the challenge. Basically it is considered as a part of non-arbitrariness to make sure there is substantive fairness of the decision.

Rationales underlying the concept of legitimate expectations

The doctrine of legitimate expectation is based on established practice, and can be invoked only by person who has dealings or transactions or negotiations with an authority, on which such established practice has a bearing, or by person who has a recognized legal relationship with the authorities.

A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly.

The Supreme Court of India in its judgment reported in 2006 (8) SCJ 721 has discussed the concept of legitimate expectation.

“The expectation should be legitimate, that is, reasonable, logical and valid. Any expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid cannot be a legitimate expectation. Not being a right, it is not enforceable as such. It is a concept fashioned by courts, for judicial review of administrative action. It is procedural in character based on the requirement of a higher degree of fairness in administrative action, as a consequence of the promise made, or practice established. In short, a person can be said to have a ‘legitimate expectation’ of a particular treatment, if any representation or promise is made by an authority, either expressly or impliedly, or if the regular and consistent past practice of the authority gives room for such expectation in the normal course. As a ground for relief, the efficacy of the doctrine is rather weak as its slot is just above ‘fairness in action’ but far below ‘promissory estoppel’. It may only entitle an expectant:

(a) to an opportunity to show cause before the expectation is dashed; or

(b) to an explanation as to the cause for denial. In appropriate cases, courts may grant a direction requiring the Authority to follow the promised procedure or established practice.

A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest, change in policy, conduct of the expectant or any other valid or bonafide reason given by the decision-maker, may be sufficient to negative the ‘legitimate expectation’.” [22]

Also at times the doctrine of the legitimate expectation was based on article 14 of the Indian Constitution. Now under this article, it imposes duty to act fairly on all of the public authorities and on this basis people can have legitimate expectation that they will be treated fairly and justice will be provided to them by the state.

In the case of Madras city wine merchant Association v. State of Tamil Nadu [23] the Supreme Court of India has have very critically viewed the English as well as Indian case law and concluded that legitimate expectation may arise on the following situations:

“if there is an express promise given by the public authority

because of the existence of a regular practice with the claimant can reasonably expect to continue

such an expectation must be reasonable” [24]

Should legitimate expectations be protected? Should the concept of legitimate expectations be expanded?

The doctrine of the Legitimate Expectation has not absorbed in the legal system in India as there seems to be some confusion in Judicial thinking on the range and scope of the concept of the legitimate expectation. The approach of the India courts has somewhat been lazy and lagging behind the approach of the English courts and English Law.

It is generally approved that legitimate expectation gives the respondent sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be used mostly to right of a fair hearing before a decision which results in refusing a promise or withdrawing an undertaking after it is taken. The doctrine of legitimate expectation does not give space to claim relief straightaway from the administrative authorities as no clear system as such is involved. The protection of such legitimate expectation does not require the fulfillment of the expectation where an overriding public interest requires otherwise.

So in other words where a person’s legitimate expectation is not fulfilled by taking a particular decision then authority that refused should justify the denial of such expectation by showing some overriding public interest. Therefore even if basic protection of such expectation is anticipated, that does not grant an absolute right to a particular person. It simply ensures the position in which that expectation may be refused or restricted.

“A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which it would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. But as discussed above a person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus has locus standi to make such a claim.” [25]

Now as mentioned above as India is still new to this doctrine. This doctrine can be meaningful only if it can be given an added space for the concept of fairness above what is already be provided under article 14 of the Indian Constitution, so basically denial for legitimate expectation is denial for the rights under Article 14 of the constitution. [26]

In India legal system it is has been observed at many occasions that large public interest is given more value instead of a individual interest. So India even though the doctrine of legitimate expectation has been brought it has still needs to be properly implemented so that it can be properly used by the applicant who come in the courts for the fair justice. So the question come that should it be protected and be expended, so according to me we should give this doctrine a chance to be brought into our legal system as it has been much successful in English law.

Conclusion

In present day scenario of the administrative process in our country, the courts need to make some positive attitude towards the protection of doctrine of legitimate expectation and for the affected person. But the court has not given enough attention to this doctrine in the recent time. Many a time there has been confusion about applicability of the concept. Following are the three points that put pressure on these connections;

“This doctrine is rooted in fairness.

It is not just procedural in nature but substantive in nature as well. It is not just locked merely to hear the claims.

It applies to the area of policy making as well.” [27]

It may be noted that SEDLEY, J. in Hamble Fisheries insisted that legitimate expectation is in reality a question of fairness in public administration. [28]