Legitimate Expectation
Legitimate Expectation
B. N. Pandey*
*
. LL.M, Ph.D, Professor, Law School, Banaras Hindu University, BHU
1
. Section 24(b): “Every person shall have the right to procedurally fair
administrative action where any of his or her rights or legitimate expectations is
affected or threatened”.
2
. [1969] 2 Ch 149; (1969) 1.AllE.R. 904.
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head and not from any continental or other source.” 3 The later cases do
not suggest any other provenance. Presumably, therefore, the origin of
the concept lies within Lord Denning’s justly famed creative mind and not
elsewhere.
However, it may be recalled that prior to the introduction of the
doctrine into English law, it was evolved in German administrative law 4
which was subsequently borrowed and developed by the European
Court.5
The judicial evolution of the doctrine of ‘legitimate expectation’
can be traced to the opinion of the Judicial Committee delivered by Lord
Fraser in Attorney-General of Hong Kong vs. Ng Tuen Shiu.6 Ng. was an
illegal immigrant from Macau. The government announced a policy of
repatriating such persons and stated that each would be interviewed and
each case treated on its merits. Ng. was interviewed and his removal
ordered. His complaint was that at the interview he had not been allowed
to explain the humanitarian grounds on which he might be allowed to
stay, but only to answer the questions put to him; that he was given a
hearing, but not the hearing in effect promised, as the promise was to
give one at which ‘mercy’ could be argued. The judicial Committee
agreed that, on that narrow point, the government’s promise had not
been implemented; his case had not been considered on its merits, and
the removal order was quashed. Ng succeeded on the basis that he had
a legitimate expectation that he would be allowed to put his case, arising
out of the government promise that everyone affected would be allowed
to do so.
In Council of Civil Service Unions vs. Minister for the Civil
Services,7 the Prime Minister issued an instruction that civil servants
engaged on certain work would no longer be permitted to be members of
trade unions. The House of Lords held that those civil servants had a
legitimate expectation that they would be consulted before such action
was taken, as it was a well-established practice for government to consult
civil servants before making significant changes to their terms and
conditions of service. In this case, it may be noted, legitimate
expectation arose not (as in Ng) out of a promise, but out of the existence
of a regular practice which could reasonably be expected to continue.
3
. In a letter to Prof. C.F. Forsyth, quoted in Cambridge Law Journal, 47 (2), July
1988, at 241.
4
. The German Concept of ‘Vertrauenschutz’ sought to protect the confidence that
subjects had placed in government.
5
. See J. Usher, “The Influence of National Concepts on Decisions of the
European Court” (1976) 1 European Law Review 359 at 364 and Re Civil Service
Salaries: E.C. Commission v. E.C. Council, (1973) E.C.R. 575; (1973) C.M.L.R.
639.
6
. (1983) 2 A.C. 629, (1983) 3 All. E.R. 346.
7
. (1985) A.C. 374, (1984) 3 All. E.R. 935.
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8
. (1986) 84 LGR 168.
9
. [2001] QB 213
10
Id. at 215
2002] DOCTRINE OF LEGITIMATE EXPECTATION 61
Development in India
The legal position in India is more or less the same as in
England. The precise content of this doctrine, which enables an
aggrieved person to seek his remedy by judicial review, has also been
the subject matter of evolution through judicial decisions. In Navjyoti
Coop. Group Housing Society v. Union of India 11, the Supreme Court
recognised that by reason of application of the said doctrine, an
aggrieved party would be entitled to seek judicial review, “if he could
show that a decision of the public authority affected him of some benefit
or advantage which in the past he had been permitted to enjoy and which
he legitimately expected to be permitted to continue to enjoy either until
he was given reasons for withdrawal and the opportunity to comment
such reasons”.12 In this case the seniority as per the existing list of
cooperative housing society for allotment of land was altered by
subsequent decision. The previous policy was that the seniority amongst
housing societies in regard to allotment of land was to be based on the
date of registration of the society with the Registrar. But on 20.1.1990,
the policy was changed by reckoning seniority as based upon the date of
approval of the final list by the Registrar. This altered the existing
seniority of the society for allotment of land. The Supreme Court held
that the societies were entitled to a “legitimate expectation” that the past
consistent practice in the matter of allotment be followed even if there
was no right in private law for such allotment. The authority was not
entitled to defeat the legitimate expectation of the societies as per the
previous seniority list without some overriding reason of public policy as
to justify change in the criterion. No such overriding public interest was
shown.
The Supreme Court recognised that the doctrine, in essence,
imposes a duty on public authority to act fairly taking into consideration
all relevant factors before effecting a change in its policies which would
affect a person who had been beneficiary of the continuing policy.
The doctrine of legitimate expectation provides that the
statements of policy or intention of the Government or its Department in
administering its affairs should be without abuse or discretion. The policy
statement could not be disregarded unfairly or applied selectively for the
reason that unfairness in the form of unreasonableness is akin to
violation of natural justice. It means that said actions have to be in
conformity of Article 14 of the Constitution, of which non-arbitrariness is a
second facet. Public Authority cannot claim to have unfettered discretion
in public law as the authority is conferred with power only to use them for
public good. Generally legitimate expectation is essentially procedural in
character as it gives assurance of fair play in administrative action but it
may in a given case be enforced as a substantive right. But a person
claiming it has to satisfy the Court that his rights had been altered by
11
. (1992) 4 SCC 477.
12
. Id. at 494.
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13
. (1993) 1. S.C.C. 71.
14
. Supra note 5.
15
. 1985 AC 835; (1985) 2 All E R 327.
16
. (1993) 3 SCC 499
17
. Id. at 549.
2002] DOCTRINE OF LEGITIMATE EXPECTATION 63
into a dual-pricing policy was not vitiated and was based on “rational and
reasonable” grounds.
The Court noted that
legitimate expectation was not the same thing as a anticipation.
It was also different from a mere wish to desire or hope; nor
was it a claim or demand based on a right. A mere
disappointment would not give rise to legal consequences.18
At another place, in the same judgement, the position was
indicated as follows:
The legitimacy of an 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
expectation should be justifiably legitimate and protectable.19
In M.P. Oil Extraction v. State of M.P. 20 the Supreme Court ruled
that the doctrine of legitimate expectation has its application only in the
realm of public law and that in an “appropriate case, constitutes a
substantive and enforceable right”. On the facts of the instant case, it
was held that the industries, with whom the State government had
entered into agreements for supply of sal seeds, had a legitimate
expectation that in accordance with the renewal clause and in
accordance with the past practice, the agreements would be renewed in
the usual manner. The Court also ruled that the selected industries, with
which the state had entered into agreements for supply of sal seeds at
concessional rates, needed the protection of continuing such agreements
and hence, the renewal clause were provided in those agreements. The
Court attached considerable importance to the need for protection of
such selected industries by upholding the validity of the renewal clauses
in those agreements, although it was apparent in the mind of the Court
that to ensure fair play and transparency in the state’s action, it was
desirable that distribution of state largesse was effected by inviting open
tenders or by public auction. The Court, however, felt that special
agreements entered into with the selected industrial units by the state
government were permissible. The decision reflects the mind of the court
that it considered the doctrine of legitimate expectation as an equitable
principle and that in order to give full effect to this principle, application of
another principle in the realm of public law may, if need be, have to be
restricted.
The Supreme Court laid down a clear principle that claims on
legitimate expectation required reliance on representation and resultant
detriment in the same way as claims based on promissory estoppel. In
National Buildings Construction Corporation v S. Raghunathan 21, the
18
. Id. at 540.
19
. Id.
20
. (1997) 7 SCC 592.
21
. (1998) 7 SCC 66.
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