Doctrine of Legitimate Expectation

A comparative and analytical study

NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

Admin Law - II
Project

Doctrine of Legitimate Expectation:

A Comparative and Analytical Study

Submitted to
Dr. Sushma Sharma
Submitted by
Kunal Sharma
2013 BALLB 63

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 Doctrine of Legitimate Expectation
A comparative and analytical study

ACKNOWLEDGMENTS

I take immense pleasure in thanking Prof. S.S. Singh, Director and Prof. Sushma Sharma our respected teacher
for having permitted me to carry out this project work. I express my gratitude to them for giving me an
opportunity to explore the world of information concerning my project topic.

Words are inadequate in thanking my seniors and batch mates for their support and cooperation in carrying out
the project work.

Kunal Sharma

2013 BALLB 63

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 Doctrine of Legitimate Expectation
A comparative and analytical study

Contents

Review Of Literature ........................................................................................................................................................... 4

Introduction .......................................................................................................................................................................... 5
Objective ........................................................................................................................................................................ 5
Hypothesis .................................................................................................................................................................... 5
The Doctrine Of Legitimate Expectation .......................................................................................................................... 6
Judicial Development Of Legitimate Expectations In The United Kingdom ......................................................... 7
Types Of Legitimate Expectations: ............................................................................................................................ 7
1. Procedural Legitimate Expectation ............................................................................................................... 7
Reasons For Protecting Legitimate Expectations..................................................................................................... 8
Judicial Development Of Legitimate Expectations In India .................................................................................... 11
Conclusion & Suggestion .................................................................................................................................................. 17
Bibliography ....................................................................................................................................................................... 18

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 Doctrine of Legitimate Expectation
A comparative and analytical study

REVIEW OF LITERATURE

Doctrine Of Legitimate Expectation In India: An Analysis1 by Seemeen Muzafar

In this article the author has summed up his analysis that legitimate expectation is not equivalent to a legal
right. The concept is more of an equitable rather than legalistic in nature. It is an expectation of benefit,
relief or remedy that may ordinarily flow from a promise or established practice. The expectation should be
legitimate, i.e., reasonable, logical and valid.

Doctrine Of Legitimate Expectation2 by BN Pandey

In this article the author has observed through judicial trend and factual situations that the plea of legitimate
expectation still remains a very weak plea in Indian Administrative Law. A claim for a benefit on the basis
of legitimate expectation is more often negatived by the Courts.

1
International Journal of Advanced Research in Management and Social Sciences, Vol 2 Issue 1
2
31 Ban.L.J.(2002) 57-65

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 Doctrine of Legitimate Expectation
A comparative and analytical study

INTRODUCTION

It cannot be overemphasized that the concept of legitimate expectation has now emerged as an important
doctrine. It is stated that it is the latest recruit to a long list of concepts fashioned by the court to review an
administrative action.3 It operates in public domain and in appropriate cases constitutes a substantive and
enforceable right.4 As a doctrine it takes its place beside such principles as rules of natural justice,
rule of law, non-arbitrariness, reasonableness, fairness, promissory estoppel, fiduciary duty and perhaps,
proportionality to check the abuse of the exercise of administrative power. The principle at the root of the
doctrine is Rule of Law which requires regularity, predictability and certainly the governments dealing
with the public.5

An expectation could be based on an express promise, or representation or by established past action or

settled conduct. It could be a representation to the individual or generally to a class of persons. Whether
an expectation exists is a question of law, but clear statutory words override any expectation, however
founded. However as an equity doctrine it is not rigid and operates in areas of manifest injustice. It
enforces a certain standard of public morality in all public dealings. However, considerations of public
interest would outweigh its application. It would immensely benefit those who are likely to be denied
relief on the ground that they have no statutory right to claim relief.

OBJECTIVE

To analyse and compare the development of the doctrine in India and the UK and its effectiveness based
on judicial trend.

HYPOTHESIS

The project is undertaken assuming that the doctrine is an effective tool of the judiciary.

3
Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499.
4
M.P. Oil Extraction Co. v. State of M.P., (1997) 7 SCC 592.
5
Chanchal Goyal (Dr.) v. State of Rajasthan, (2003) 3 SCC 485
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 Doctrine of Legitimate Expectation
A comparative and analytical study

THE DOCTRINE OF LEGITIMATE EXPECTATION

Exercise of discretion is an inseparable part of sound administration and, therefore, the State which is itself
a creature of the Constitution, cannot shed its limitation at any time in any sphere of State activity. A
discretionary power is one which is exercisable by the holder of the power in his discretion or subjective
satisfaction. The exercise of discretion must not be arbitrary, fanciful and influenced by extraneous
considerations. In matters of discretion the choice must be dictated by public interest and must not be
unprincipled or unreasoned. Reasonable and non-arbitrary exercise of discretion is an inbuilt requirement
of the law and any unreasonable or arbitrary exercise of it violates Article 14 of the Constitution of
India, 1950. The discretion must be exercised reasonably in furtherance of public policy, public good
and for public cause. This doctrine of legitimate expectation acts as a deterrent for those in charge of
public power from exercising it arbitrarily. It should not be capped, cabined or confined in narrow,
pedantic and lexographic approach; rather it should be given broadest of interpretations so as to cover
within its purview the dialectics and dynamics of fairness and efficiency. The basic purpose for the same
being the expectation in a rule of law society is that holders of public power and authority must be able
to publicly justify their action as legally valid and socially wise and just. Under such circumstances, it
becomes an inherent right of the public in a democracy to prevent themselves from the abuse of discretion
and do not get susceptible to the deadly tentacles of arbitrariness and unreasonableness.

As the legitimate expectation doctrine gained acceptance, it was invoked in a wider range of cases, which
can be conveniently summarised into four categories:

1. The first was cases in which a person had relied upon a policy or norm of general application
but was then subjected to a different policy or norm.

2. The second category, which was a slight variation on the first, included cases in which a policy or
norm of general application existed and continued but was not applied to the case at hand.

3. A third category arose when an individual received a promise or representation which was not
honoured due to a subsequent change to a policy or norm of general application.
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 Doctrine of Legitimate Expectation
A comparative and analytical study

4. A fourth category, which was a variation on the third, arose when an individual received a
promise or representation which was subsequently dishonoured, not because there had been a
general change in policy, but rather because the decision- maker had changed its mind in that
instance.6

This doctrine has found acceptance not only in the U.K. (as this paper will elaborate in the next chapter)
where it originated, but also in Australia, South Africa, Hong Kong, Singapore, New Zealand,
Canada and as this paper will examine, in India.

JUDICIAL DEVELOPMENT OF LEGITIMATE EXPECTATIONS IN THE

UNITED KINGDOM

The Courts in England have been faced with various situations in which they have had to deal with the
aspect of legitimate expectations. The developments that the Courts have brought abut have lent a
structural stability to the concept.

TYPES OF LEGITIMATE EXPECTATIONS:

1. Procedural Legitimate Expectation-

Denotes the existence of some process right the applicant claims to possess as a result of behavior by
the public body that generates the expectation.7

2. Substantive Legitimate Expectation -

6
P P CRAIG, ADMINISTRATIVE LAW, 641 (5th ed, 2003).
7 See, R. v. Liverpool Taxi Fleet Association, [1972] 2 QB 299.

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 Doctrine of Legitimate Expectation
A comparative and analytical study

Refers to the situation in which the applicant seeks a particular benefit or commodity, such as a welfare
benefit or license. The claim to such a benefit will be founded upon governmental action which is said
to justify the existence of the relevant expectation. Some of the arguments in favor of substantive
legitimate expectations are: it creates fairness in public administration, reliance and trust in government,
principle of equality, upholds rule of law.8

REASONS FOR PROTECTING LEGITIMATE EXPECTATIONS

It is required by fairness; abuse of power has been considered the root concept justifying the protection of
legitimate expectations; in European context, legal certainty i.e. the individual ought to be able to plan his
or her action on the basis that the expectation will be fulfilled is also relied upon; the trust that has been
reposed by the citizen in what he has been told or led to believe by the official.

WHEN IS AN EXPECTATION LEGITIMATE?

First, it must be founded upon a promise or practice by the public authority that is said to be bound to
fulfil the expectation.

Second, clear statutory words override any expectation howsoever founded.

Third, the notification of a relevant change of policy destroys any expectation founded upon the earlier
policy.

Fourth, the individual seeking protection of the expectation must themselves deal fairly with the public
authority.

8 Ex. P. Hamble (Offshore) Fisheries Ltd [1995] 2 All. E.R. 714, 724; Hargreaves, [1997] 1 WLR 906

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 Doctrine of Legitimate Expectation
A comparative and analytical study

HOW CAN A LEGITIMATE EXPECTATION ARISE?

In CCSU v. Minister for Civil Service, Lord Fraser identifies two ways by which a legitimate expectation can
arise: legitimate expectation may arise from either an express promise given on behalf of the public
authority or from the existence of a regular practice which the claimant can reasonably expect to
continue.9

1. Express Promise: The most common way a legitimate expectation might arise is by an express
promise or specific representation to an individual or group. In R. v. Liverpool Taxi Fleet
Association,10 an express promise from the Liverpool Corporation that it would not increase the
number of taxi licenses in the area without consultation with the Association was held to create a
legitimate expectation of consultation.
2. Existence of Regular Practice: In CCSU case, where continuous practice of consultation before
changes to conditions of service led to the legitimate expectation there would be consultation
before the Minister abolished the membership of the trade union.

3. Certain Criteria must be satisfied for the promise or practice to gain legal
enforceability in public law:
The promise must be clear, unambiguous and precise. The promise of a hearing before a decision is
taken may give rise to a legitimate expectation that the hearing will be given.
The legitimate expectation must be legal. It should be within the powers of the body to make the
representation and fulfill it.
Knowledge of policy but not reliance on it to ones own detriment.
If the individual has suffered no hardship, there would be no reason to hold the decision-maker to
its promise.

9
[1985] AC 374, 401. See, CLIVE LEWIS, JUDICIAL REMEDIES IN PUBLIC LAW, 272 (3rd edn, 2004).
10
ibid
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 Doctrine of Legitimate Expectation
A comparative and analytical study

STANDARD OF REVIEW FOR BREACH OF LEGITIMATE EXPECTATION

In R. (Bibi) v. Newham London Borough Council,11 the Court of Appeal gave guidance on how
the court should approach legitimate expectation cases with three practical questions: First, what
has the public authority, whether by promise or practice, committed itself to; second, whether the
authority has acted or proposed to act unlawfully in relation to its commitment; third, what the
court should do in this regard.

L. J. Laws in Abdi and Nadarajah v. Secretary of State for Home Department,12 advocated a test of
proportionality for judicial review of administrative action on the basis of legitimate expectation.
This precedent sheds some light on whether proportionality could be used and adjusted to give
due weight to the fact that the decision-maker nay have greater expertise and/or democratic
legitimacy than the court, and the court could apply the test with varying degrees of intensity by
scrutinizing more or less closely a decision-makers claims that it was necessary to frustrate the
applicants expectation.

11
[2001] EWCA Civ 607
12
[2005] EWCA Civ. 1363
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 Doctrine of Legitimate Expectation
A comparative and analytical study

JUDICIAL DEVELOPMENT OF LEGITIMATE EXPECTATIONS IN

INDIA

Some Supreme Court cases that have recently dealt with the doctrine of legitimate expectation
are:

In J.P.Bansal v State of Rajasthan,13 the Supreme Court while examining the doctrine of legitimate
expectation held that:

The principle of legitimate expectation is at the root of the rule of law and requires regularity,
predictability and certainty in governments dealings with the public. For a legitimate expectation
to arise, the decisions of the administrative authority must affect the person by depriving him of
some benefit or advantage which either:

(i) he had 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 there has been communicated to him some
rationale grounds for withdrawing it or where he has been given an opportunity to comment; or

(ii) he has received assurance from the decision maker that they will not be withdrawn
without giving him first an opportunity of advancing reasons for contending that they should
not be withdrawn.

The procedural part of it relates to a representation that a hearing or other appropriate procedure
will be afforded before the decision is made. The substantive part of the principle is that if a
representation is made than a benefit of substantive nature will be granted or if the person is
already in receipt of the benefit than it will be continued and not be substantially varied, then the
same could be enforced. An exception could be based on an express promise or representation or
by established past action or settled conduct. The representation must be clear and unambiguous.
It could be a representation to an individual or to a class of persons.

13
2003(3) SCC 154
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 Doctrine of Legitimate Expectation
A comparative and analytical study

In another case, Punjab Communications Ltd v. Union of India (1999),14 the Supreme Court cited
British precedents (especially Hargreaves) to suggest that whether a legitimate expectation
can be legally frustrated on public interest grounds can only be judged by the very deferential
standards of Wednesbury unreasonableness, and nor the more demanding test of proportionality. It
also went on to note that the doctrine of legitimate expectation in the substantive sense has been
accepted as part of [Indian] law and that the decision maker can normally be compelled to give
effect to his representation in regard to the expectation based on previous practice or past conduct
unless some overriding public interest comes in the way.

In MRF Ltd Kottayam vs Asst Commissioner, Sales Tax15, it was observed that the protection of
legitimate expectation does not require the fulfillment of such expectation where an
overriding public interest requires otherwise. That is to say, the public interest is overriding.

Therefore, what becomes clear is that legitimate expectations as a ground for challenging administrative
action can be done away with when there is an overriding public interest and the immediacy of the situation
required a change in policy, moving away from past promises and practice.

Recently, a Constitution Bench of the SC in Secretary, State of Karnataka v. Umadevi,16

referred to the circumstances in which the doctrine of legitimate expectation can be invoked thus :
The doctrine can be invoked if the decisions of the administrative authority affect the person by
depriving him of some benefit or advantage which either (i) he had 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 there have been communicated to him some rational grounds for withdrawing it on which he has
been given an opportunity to comment; or (ii) he has received assurance from the decision-maker that
they will not be withdrawn without giving him first an opportunity of advancing reasons for
contending that they should not be withdrawn.

14
1999 (4) SCC 727
15
Supreme Court of India judgment dated 21 September 2006
16
2006 (4) SCC 1
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 Doctrine of Legitimate Expectation
A comparative and analytical study

Another Constitution Bench, referring to the doctrine, observed thus in Confederation of Ex-
servicemen Associations vs. Union of India:17 No doubt, the doctrine has an important place in the
development of Administrative Law and particularly law relating to 'judicial review'. Under the
said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way
by an administrative authority even though he has no right in law to receive the benefit. In such
situation, if a decision is taken by an administrative authority adversely affecting his interests, he may
have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate
expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation
may arise either from the express promise or from consistent practice which the applicant may
reasonably expect to continue. In such cases, therefore, the Court may not insist an administrative
authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that
good administration demands observance of reasonableness and where it has adopted a particular
practice for a long time even in absence of a provision of law, it should adhere to such practice
without depriving its citizens of the benefit enjoyed or privilege exercised.

As to who can invoke the protection of legitimate expectation, the SC has observed, after examining a
list of authorities on the subject, that: The doctrine of legitimate expectation based on established
practice (as contrasted from legitimate expectation based on a promise), can be invoked only by
someone who has dealings or transactions or negotiations with an authority, on which such
established practice has a bearing, or by someone who has a recognized legal relationship with the
authority-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.18

In Food Corporation of India v. Kamdhenu Cattle Feed Industries Ltd,19 the Supreme Court has
observed that the doctrine of legitimate expectation falls within the purview of the principle of

17
JT 2006 (8) SC 547
18
Ram Pravesh Singh & Ors. v.State of Bihar & Ors., 2006 (8) SCJ 721
19
AIR 1993 SC 1601
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 Doctrine of Legitimate Expectation
A comparative and analytical study

non-arbitrariness as incorporated under Article 14 of the Constitution. It becomes an enforceable

right when the Government instrumentality fails to give due weight to it.

However, as per the observations of the Supreme Court in Assistant Excise

Commissioner v. Issac Peter,20 the doctrine of legitimate expectation cannot be invoked to
alter the terms of a contract of a statutory nature. Similarly, in Howrah Municipal Corporation v.
Ganges Road Company Ltd45 it has been held that no right can be claimed on the basis of
legitimate expectation when it is contrary to statutory provisions which have been enforced in
public interest.

In Madras City Wine Merchants Association v. State of Tamil Nadu21 the doctrine of legitimate
expectation was held to become inoperative when there was a change in public policy or in
public interest as has been reaffirmed in some of the aforementioned decisions.

In Union of India v. Hindustan Development Corporation,22 the Supreme Court has elaborately
considered the reverence of this theory. In the estimation of the Apex Court, the doctrine does not
contain any crystallized right. It gives to the applicant a sufficient ground to seek judicial review
and the principle is mostly confined to the right to a fair hearing before any decision is given.

It was held in Navjyoti Co-op Group Housing Society v. Union of India23 that the doctrine of
legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking
into consideration all the relevant factors bearing a nexus to such legitimate expectation. The
concerned authority cannot act arbitrarily so as to defeat the expectation, unless demanded by
over-riding reasons of public policy.
Further, in another landmark judgment, M.P. Oil Extraction Co v. State of Madhya Pradesh,
the Supreme Court was dealing with the license renewal claims of certain industries. It was held

20
(1994) 4 SCC 104.
21
(2004) 1 SCC 663
22
(1994) 5 SCC 509
23
AIR 1993 SC 155
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 Doctrine of Legitimate Expectation
A comparative and analytical study

in this case that extending an invitation, on behalf of the State, was not arbitrary and the selected
industry had a legitimate expectation of renewal of license under the renewal claims.

In National Building Constructions Corporation v. S Raghunathan24 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.

The Supreme 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.

In Union of India v. International Trading Co 25 . It was held that. The reasonableness of

the legitimate expectation has to be determined with respect to the circumstances relating to the
trade or business in question. Canalisation of a particular business in favour of even a specified
individual is reasonable where the interests of the country are concerned or where the business
affects the economy of the country.

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.

24
AIR 1998 SC 2776
25
(2003) 5 SCC 437)
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 Doctrine of Legitimate Expectation
A comparative and analytical study

Most recently, in Sethi Auto Service Station v. DDA26 the Court clarified its position on the doctrine
of legitimate expectation: 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.

The development of the doctrine of legitimate expectation in India has been in line with the principles
evolved in common law English courts. In fact, it was from these English cases itself that the doctrine
first came to be recognized by the courts in India. It therefore creates a new category of remedy against
an administrative action and furthers the rule of law in India.

26
(2009) 1 SCC 180
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 Doctrine of Legitimate Expectation
A comparative and analytical study

CONCLUSION & SUGGESTION

As Wade & Forsyth believe, the doctrine of legitimate expectations is a welcome addition to the armoury
of the courts ensuring that discretions are exercised fairly. The phrase legitimate expectation, which is
much in vogue, must not be allowed to collapse into an inchoate justification for judicial
intervention.27

Academics have expressed skepticism as to whether the doctrine of legitimate expectation should apply
to substantive rights. Thio Li-ann argues that legitimate expectations should relate only to procedural
rather than substantive rights.28 Procedural protection only has a minimal impact on the administrative
autonomy of the relevant public authority, since the court is only concerned with the manner in which the
decision was made and not whether the decision was fair. Thus, the ultimate autonomy of public
authorities is never placed in jeopardy. Conversely, as Mark Elliot posits, giving effect to a substantive
legitimate expectation impinges on the separation of powers.29 The authority has been entrusted by
Parliament to make decisions about the allocation of resources in public interest. Applying legitimate
expectation substantively allows the courts to inquire into the merits of the decision. Such
interference with the public authority's discretion would be overstepping their role and exceeding their
proper constitutional function.

The courts have been taking a more active role in controlling the exercise of discretionary power and
upholding the rule of law, while recognizing that in certain situations deference to the Executive is
necessary. The courts have to therefore maintain a balance between legitimate judicial intervention and
judicial interference violating the principle of separation of powers, and as the concept of legitimate
expectations continues to develop, maintaining this balance will be at the forefront.

27
R. (EB Kosovo) v. Home Secretary, [2008] UKHL 41. (Lord Scott)
28 Thio Li-ann, Law and the Administrative State in KEVIN YEW LEE TAN (ed.), THE SINGAPORE LEGAL SYSTEM, 190 (1996)
29
Mark Elliot, Coughlan: Substantive Protection of Legitimate Expectations Revisited, 5 (1) Judicial Review 27 (2000)
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 Doctrine of Legitimate Expectation
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BIBLIOGRAPHY

Kumar, Narender; Nature and Concepts of Administrative Law, 1st Ed., Allahabad Law Agency,
Faridabad, 2011.
Upadhyaya, Dr. J.J.R.; Administrative Law, 7th Ed., Central Law Agency, Allahabad, 2011.
Jain, M.P. & Jain, S.N.; Principles of Administrative Law, 6th Ed., Vol. II, Wadhwa Nagpur, 2007.
Wade, H.W.R. & Forsyth, C.F.; Administrative Law, 9th Ed., Oxford University Press, New Delhi, 2006.
Kesari, U.P.D ; Administrative Law ,15th Edition Central Law Publications ,Allahabad,2005

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