India: Doctrine Of Legitimate Expectation: Overview

"What is legitimate expectation? Obviously, it is not a legal right. It is an expectation of a benefit, relief or remedy that may ordinarily flow from a promise or established practice. The term 'established practice' refers to a regular, consistent predictable and certain conduct, process or activity of the decision-making authority. 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."

[2006 (8) SCJ 721]

In order to maintain the balance between the continuously evolving freedom of individuals and state authority, the Administrative law has to also evolve itself to suit the needs and expectations of people and their rights and duties. There are several principles of Administrative Law, which have been evolved by the courts for the purpose of controlling the exercise of power so that it does not lead to arbitrariness or abuse of power. These principles are intended to provide safeguard to the citizens against abuse or misuse of power by the instrumentalities or agencies of the State. One of the latest and important of these principles is the 'doctrine of legitimate expectation', which is an outcome of synthesis between the principle of administrative fairness (a component of the principles of natural justice) and the rule of estoppel1.

Legitimate Expectations, are different from Expectations at large, and are not Legal rights, but are expectation of benefits, relief/remedy that accrues from a promise or established practices, and give rise to locus standi to a person to seek judicial review of any action, of State or its subsidiaries, which are arbitrary, discriminatory, unfair, malicious in law, devoid of Rule of law and violative of the principles of Natural Justice2.

Origin

The evolvement of the doctrine of Legitimate Expectation in the Common law jurisdiction can been traced to an obiter dictum of Lord Denning M. R in Sehmidt v. Secretary of Home Affairs3. Lord Denning observed in Sehmidt:

"The speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say ...."

In this case certain non national students at Hubbard College of Scientology had been given leave to enter the United Kingdom before July, 1968, initially for a period of a month. The periods had been extended to the end of August and September 1968, respectively. Applications were made on behalf of the plaintiffs to the Home Office on June 11 and July 15, 1968 for extensions of their stay until November and December 1968, to complete their studies. By letters of July 29 and 30 the Home Secretary, the defendant, rejected the applications. The plaintiff's stay was, however, extended to September 30 to let them make arrangements to leave.

The Plaintiffs, on behalf of themselves and 50 other alien students of the college, claimed declarations against the defendant that his decision not to consider further similar applications for extension of stay was unlawful, void, and of no effect and the defendant was bound to consider such applications on their merit and in accordance with the principles of natural justice. The court of appeal held that they had no legitimate expectation of extension and therefore no right to hearing, though revocation of their permits within the earlier granted period of permit would have been contrary to legitimate expectation.

The legitimate expectation referred to in, this case did not give the alien students an enforceable right to stay for the time originally permitted but an enforceable right to be heard before the decision to revoke his permit was taken: a procedural protection only4.

Evolution in India

As already stated that the Doctrine of "Legitimate Expectation " is not a legal right in itself embedded in some statute of Code readily available for its inference and applicability. However it is a right to be treated fairly and the same has been fashioned by judicial precedents of various courts over a period time and is still in its evolving stage.

The Supreme Court in M/S Sethi Auto Service Station vs Delhi Development Authority & Ors5. has examined the concept of 'legitimate expectation'. While dealing with the question of allotment of a plot by the DDA, the Supreme Court has enumerated various decisions of the concept of Legitimate Expectation and examined the law relating thereto. The Court held as under;

"19. The protection of legitimate expectations, as pointed out in De Smith's Judicial Review (Sixth Edition) (para 12-001), is at the root of the constitutional principle of the rule of law, which requires regularity, predictability, and certainty in government's dealings with the public. The doctrine of legitimate expectation and its impact in the administrative law has been considered by this Court in a catena of decisions but for the sake of brevity we do not propose to refer to all these cases. Nevertheless, in order to appreciate the concept, we shall refer to a few decisions. At this juncture, we deem it necessary to refer to a decision by the House of Lords in Council of Civil Service Unions & Ors. Vs. Minister for the Civil Service, a locus classicus on the subject, wherein for the first time an attempt was made to give a comprehensive definition to the principle of legitimate expectation. Enunciating the basic principles relating to legitimate expectation, Lord Diplock observed that for a legitimate expectation to arise, the decision of the administrative authority must affect such person either

(a) by altering rights or obligations of that person which are enforceable by or against him in private law or;

(b) by depriving him of some benefit or advantage which either: (i) he has in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue to do until some rational ground for withdrawing it has been communicated to him and he has been given an opportunity to comment thereon or (ii) he has received assurance from the decisionmaker that they will not be withdrawn without first giving him an opportunity of advancing reasons for contending that they should be withdrawn.

20. In Attorney General of Hong Kong Vs. Ng Yuen Shiu, a leading case on the subject, Lord Fraser said: "when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as the implementation does not interfere with in its statutory duty".

21. Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation of India Vs. M/s Kamdhenu Cattle Feed Industries, a three-Judge Bench of this Court had observed thus:

"The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of nonarbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent."

22. The concept of legitimate expectation again came up for consideration in Union of India & Ors. Vs. Hindustan Development Corporation & Ors. Referring to a large number of foreign and Indian decisions, including in Council of Civil Service Unions and Kamdhenu Cattle Feed Industries (supra) and elaborately explaining the concept of legitimate expectation, it was observed as under: "If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased, gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is "not the key which unlocks the treasury of natural justice and it ought not unlock the gate which shuts the court out of review on the merits", particularly when the element of speculation and uncertainty is inherent in that very concept."

23. Taking note of the observations of the Australian High Court in Attorney General for New South Wales Vs. Quinn that, "to strike down the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the Courts adrift on a featureless sea of pragmatism", speaking for the Bench, K. Jayachandra Reddy, J. said that there are stronger reasons as to why the legitimate expectation should not be substantively protected than the reasons as to why it should be protected. The caution sounded in the said Australian case that the Courts should restrain themselves and restrict such claims duly to the legal limitations was also endorsed.

24. Then again in National Buildings Construction Corporation Vs. S. Raghunathan & Ors., a three-Judge Bench of this Court observed as under:

"The doctrine of "legitimate expectation" has its genesis in the field of administrative law. The Government and its departments, in administering the affairs of the country, are expected to honour their statements of policy or intention and treat the citizens with full personal consideration without any iota of abuse of discretion. The policy statements cannot be disregarded unfairly or applied selectively. Unfairness in the form of unreasonableness is akin to violation of natural justice. It was in this context that the doctrine of "legitimate expectation" was evolved which today has become a source of substantive as well as procedural rights. But claims based on "legitimate expectation" have been held to require reliance on representations and resulting detriment to the claimant in the same way as claims based on promissory estoppel."

25. This Court in Punjab Communications Ltd. Vs. Union of India & Ors., referring to a large number of authorities on the question, observed that a change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury" reasonableness. The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. Therefore, the choice of the policy is for the decision maker and not for the Court. The legitimate substantive expectation, merely permits the Court to find out if the change in policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. (Also see: Bannari Amman Sugars Ltd. Vs. Commercial Tax Officer & Ors.

26. Very recently in Jitendra Kumar & Ors. Vs. State of Haryana & Anr. It has been reiterated that a legitimate expectation is not the same thing as anticipation. It is distinct and different from a desire and hope. It is based on a right. It is grounded in the rule of law as requiring regularity, predictability and certainty in the Government's dealings with the public and the doctrine of legitimate expectation operates both in procedural and substantive matters.

An examination of the afore-noted few decisions shows that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expectation, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfill unless some overriding public interest comes in the way. However, a person who bases his claim on the doctrine of legitimate expectation, in the first instance, has to satisfy that he has relied on the said representation and the denial of that expectation has worked to his detriment. The Court could interfere only if the decision taken by the authority was found to be arbitrary, unreasonable or in gross abuse of power or in violation of principles of natural justice and not taken in public interest. But a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It is well settled that the concept of legitimate expectation has no role to play where the State action is as a public policy or in the public interest unless the action taken amounts to an abuse of power. The court must not usurp the discretion of the public authority which is empowered to take the decisions under law and the court is expected to apply an objective standard which leaves to the deciding authority the full range of choice which the legislature is presumed to have intended. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness to a person whose interest based on legitimate expectation might be affected. Therefore, a legitimate expectation can at the most be one of the grounds which may give rise to judicial review but the granting of relief is very much limited.

Footnotes

1. Doctrine of Legitimate Expectation: B.N Pandey

2. Legitimate Expectations: Ijress

3. [1969] 2 Ch 149; (1969) 1.AllE.R. 904.

4. Doctrine of Legitimate Expectation: B.N Pandey

5. AIR 2009SC904

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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