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Are all Expectations Legitimate?

This article deals with the rationale of Doctrine of Legitimate expectation and its application in the current Indian law. 

By: Meemansha Dubey, B. A. LL. B. (Hons) IVth Sem, RDVV University, Jabalpur. 

INTRODUCTION

The doctrine of legitimate expectation is a nascent addition to the rules of natural justice. (1) The Doctrine of Legitimate Expectation is a judicial creation for the review of administrative action. This doctrine includes expectation which goes beyond an enforceable legal right, provided it has some reasonable basis. The doctrine is based on constitutional principle of rule of law which requires regularity, predictability and certainty in government dealings with the public. (2)

ORIGIN AND DEVELOPMENT

  1. Position in UK-

The term “Legitimate Expectation” was first used by Lord Denning in 1969. According to him “if a person has some legitimate expectation it would not be fair to deprive him without hearing what he has to”. (3) The doctrine was developed from the cases of:

  • Schmidt v. Secretary of State for home affairs, (4)

Held – The court of appeal ruled that a foreigner whose permit to stay in Britain had expired did not have a right to be heard if he was refused extension of time to stay longer because a foreigner has no legitimate expectation of being allowed to stay after the expiry of his permit.

  • Council Service Unions v. Minister for the civil service, (5)

Held – The decision of the public authority should affect the person such that-

  1. His rights or obligations are altered, which are enforceable by or against him
  2. He is deprived of some benefit or advantage which he had been permitted by the authorizing body in the past and which he could have legitimately expected to enjoy until a valid ground for withdrawal of the same was communicated to him. 
  1. Indian position

The Doctrine is not extra constitutional. A reasonable and non-arbitrary exercise of discretion is an inbuilt requirement of the law and any unreasonable or arbitrary exercise of it violates Article14 of the Constitution of India. Article 14 contains the doctrine of “reasonableness” which is anti-thesis of arbitrariness. (6) This doctrine was discussed in the Indian arena in several cases: 

  • State of Kerala v. K. G. Madhavan Pillai (7)

Facts –Herein a sanction was issued for the respondents to open a new aided school and to upgrade the existing schools, however, an Order was issued 15 days later to keep the previous sanction in abeyance. This Order was challenged by the respondents in lieu of violation of principles of natural justice.

Held –The Supreme Court ruled that the sanction had entitled the respondents with legitimate expectation and the second order violated principles of natural justice. 

  • Navjyoti Coop. Group Housing Society v. Union of India (8)

Facts –the new criteria for allotment of land was challenged. In the original policy, the seniority with regards to allotment was decided on the basis of date of registration. Subsequently, a change in policy was made in 1990, changing the criteria for deciding seniority based on the date of approval of the final list.

Held –The Supreme Court was of the opinion that the Housing Societies were entitled to ‘legitimate expectation’ owing to the continuous and consistent practice in the past in matters of allotment. 

ESSENTIALS OF THE DOCTRINE  

The doctrine arises in the following cases: 

  • By express promise
  • By existence of regular practice
  • Such practice being clear and unambiguous

If by reason of existing state of affairs, a party is given to understand that the other party shall not take away the benefit without complying with the principles of natural justice, the said doctrine would be applicable. The denial of legitimate expectation is a ground for challenging an administrative action but the person seeking to invoke the doctrine must be aggrieved and must have altered his position. (9)

Legitimate expectation is not same as anticipation which is a mere desire or pious hope and a mere disappointment does not attract a legal consequence. (10)

TYPES OF LEGITIMATE EXPECTATION

The procedural aspect of the doctrine of legitimate expectation has been well established in India. However, the substantive aspect of the doctrine is still in its developing stages. 

  1. Procedural Legitimate expectation – A procedural legitimate expectation by an individual on the presumption that the decision-maker will follow a certain procedure in advance of a decision being taken. (11)
  1. Substantive Legitimate expectation – A substantive legitimate expectation arises where a public body makes a “lawful representation that an individual will receive, or continue to receive, a substantive benefit of some kind”. (12)

CONSIDERATIONS BY COURT 

  • Whether a legitimate expectation has arisen;
  • Whether it would be unlawful for the authority to frustrate such an expectation; and
  • If it is found that the authority has done so, what remedies are available to the aggrieved person.

Courts have considered the applicant’s reliance (weak or strong) on the representation as a relevant consideration when determining the existence of a legitimate expectation. (13), (14)

The Wednesbury reasonable test may be applied to find out whether the changes from one policy to another were justified. The court is not to judge the merit of decision maker’s policy. The public authority in question is the judge of the issue whether “overriding public interest” justifies such a change in policy.

REMEDIES 

  • Fulfilment of the legitimate expectation
  • Reconsideration of decision
  • Damages

LIMITATIONS ON THE DOCTRINE

  • It has no role to play where the state action is in a public interest unless the action taken amounts to an abuse of power. 
  • Clear statutory words override any expectation howsoever founded. (15)
  • The notification of a relevant change of policy destroys any expectation founded upon the earlier policy after following Wednesbury principles. (16)
  • The individual seeking protection of the expectation must themselves deal fairly with the public authority. (17)

CONCLUSION

The doctrine provides a central space between “no claim” and a legal claim. With reference to India, after Kotharia Industries Case, one can only hope that the Supreme Court will clarify the doctrine of legitimate expectation as well as lay down a test to judge whether there has been a denial of legitimate expectation and whether such denial is justifiable.

SUGGESTION

The test of Wednesbury unreasonableness which has already been discarded in the Coughlan case (18), ought to be discarded here as well as a test for justification of denial of legitimate expectation. Instead the test of abuse of power as test for the Coughlan case may be adopted. This may well provide the stepping stone to the Indian judiciary to accept the substantive aspect of judicial legitimate expectations.

(1) Official Liquidator v. Dayanand (2008) SCC 1, 61 para 102
(2) Ibid.
(3) (1969) 2 WLR 337
(4) Ibid.
(5) 1985 ACC 374
(6) Food Corporation of India v. Kaamdhenu Cattle Feed Industries, AIR 1993 SC 1601
(7) (1988) 4 SCC 669
(8) (1992) 4 SCC 477
(9) National Banking Construction Corporation v. S. Raghunathan, (1998) 7 SCC 66 para 20, 26
(10) Union of India v. Hindustan Development Corporation (1993) 3 SCC 499.
(11) Attorney General of Hong Kong v. Ng yuenShiu (1983)
(12) R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, para 41) 
(13)
(14) Andrew [P.] Le Sueur, De Smith’s Judicial Review (6th ed.), London: Sweet & Maxwell, para. 4-051,
(15) Dr. Chanchal v. State of Rajasthan (2003) 3 SCC 485 para 23 p. 501
(16) Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509 para 48 p. 535.
(17) R. v. Inland Revenue Commissioners, ex parte M.F.K. Underwriting Agents Ltd. (1989) [1990] 1 W.L.R. 1545
(18) R. V. North and East Devon Health Authority, ex parte Coughlan [1999] EWCA Civ 1871, [2001] Q.B. 213, C.A. (England & Wales).

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