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DOCTRINE OF LEGITIMATE EXPECTATION

TABLE OF CONTENTS

 INTRODUCTION.......................................................................................4-5
 DOCTRINE OF LEGITIMATE EXPECTATIONS: THE CONCEPT......5-6
 NATURE, SCOPE AND RELEVANCE OF THE DOCTRINE................6-7
 DEVELOPMENT OF THE DOCTRINE......................................................7
 ILLUSTRATIONS......................................................................................7-8
 DEVELOPMENT OF THE DOCTRINE IN INDIA.....................................8
 THE POSITION AND APPLICATION OF THE DOCTRINE IN
INDIA........................................................................................................9-11
 CONSEQUENCES.......................................................................................11
 LIMITATIONS........................................................................................11-12
 CONCLUSION........................................................................................13-14
 BIBLIOGRAPHY.........................................................................................15
 WEB RESOURCES......................................................................................15
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INTRODUCTION:

“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.”1

The principle of legitimate expectation is closely connected with a 'right to be heard'. Such an
action may take many forms. One may be expectation of prior consultation. Another may be
expectation of being allowed time to make representations, especially where the aggrieved party
is seeking to persuade an authority to depart from a lawfully established policy adopted in
connection with the exercise of a particular power because of some suggested exceptional
reasons justifying such a departure.2

Legitimate expectation may arise-

1. If there is an express promise given by a public authority; or

2. Because of the existence of a regular practice which the claimant can reasonably expect to
continue;

1
<http://www.mondaq.com/india/x/320664/Constitutional+Administrative+Law/
Doctrine+Of+Legitimate+Expectation+Overview>
2
<http://www.ijtr.nic.in/articles/art13.pdf>
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3. Such an expectation must be reasonable.3

The concept of legitimate expectation is not the key which unlocks the treasury of natural justice
and it ought not to unlock the gates which shut the court out of review on the merits, particularly
when the element of uncertainty and speculation is inherent in that very concept.4

THE DOCTRINE OF LEGITIMATE EXPECTATION: THE CONCEPT:

The concept of legitimate expectations adds to those of right and interest in three different ways.
First, the court may decide that the interest, although not presently held, is important enough that
an applicant should not be refused it without having some procedural rights. In this sense the
courts are protecting future interests. The courts make a normative judgment that a consequence
of applying for a substantive interest is that some procedural protection is warranted.5

A second way in which the concept of Legitimate Expectation adds to the ideas of right and
interest is where there is a clear and unequivocal representation. Where this condition is satisfied
a representation generating a legitimate expectation can be of importance in two types of case.
On one hand there may be cases in which the representation provides the foundation for the
procedural rights, even though in the absence of the representation it is unlikely that the
substantive interest would in itself not warrant procedural protection. On the other hand the
representation that gives rise to the legitimate expectation may augment the applicant’s
procedural rights.6

The third way in which legitimate expectations can arise is closely related to but distinct from the
second. This is where the defendant institution has established criteria for the application of
policy in a certain area, an applicant has relied on these criteria and the defendant then seeks to
apply different criteria.7

A person may have a “legitimate expectation” of being treated in a certain way by an

administrative authority even though he has no legal right in private law to receive such
treatment. The expectation may arise either from a representation or promise made by the

3
Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509
4
<http://www.ijtr.nic.in/articles/art13.pdf>
5
Craig, Paul, Administrative Law, 6th edition, pg- 382, Sweet & Maxwell, London, 2008.
6
Craig, Paul, Administrative Law, 6th edition, pg- 383, Sweet & Maxwell, London, 2008.
7
Craig, Paul, Administrative Law, 6th edition, pg- 384, Sweet & Maxwell, London, 2008.
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authority, including an implied representation, or from consistent past practise. A legitimate

expectation can provide a sufficient interest to enable one who cannot point to the existence of a
substantive right to obtain the leave of the court to apply for judicial review.8

NATURE, SCOPE AND RELEVANCE OF THE DOCTRINE:

The doctrine of legitimate expectation is a nascent addition to the rules of natural justice. It is a
recent creation of the decisional law. It forms a part of a judicial strategy to exclude the
possibility of arbitrary administrative actions. 9 It goes beyond statutory rights by serving as
another device for rendering justice. At the root of the principle of legitimate expectation is the
constitutional principle of Rule of Law, which requires regularity, predictability and certainty in
Government’s dealings with the public.10

Where a decision of an administrative authority adversely affects legal rights of an individual,

duty to act judicially is implicit. But even if there is no legal right, he may still have legitimate
expectation to receive the benefit or privilege. Such expectation may arise either from express
promise or from existence of regular practise which the applicant can reasonably expect to
continue. In such a case, the court may protect his expectation by invoking principles analogous
to natural justice and fair play in action. The court may not insist an administrative authority to
act judicially but may still insist him to act fairly.11

The court in Union of India v. Hindustan Development Corporation12 got the opportunity of
laying down the meaning and scope of this doctrine. Explaining the meaning of the doctrine and
the legitimacy of the doctrine when it arises, the court held:

“Time is a three-fold present as we experience it, the past as a present memory and future as a
present expectation. For legal purposes the expectation cannot be same as anticipation. It is
different from a wish, a desire or a hope nor can it amount to a claim or demand on the ground
8
Kagazi, Jain MC, The Indian Administrative Law, 7th edition, pg-278, Universal Law Publishing Co., New Delhi,
2014.
9
Sathe, SP, Administrative Law, 7th edition, pg-184, Lexis Nexis Butterworths, New Delhi, 2004.
10
Kagazi, Jain MC, The Indian Administrative Law, 7th edition, pg-278, Universal Law Publishing Co., New Delhi,
2014.
11
Takwani, C.K., Lectures on Administrative Law, 3rd edition, pg- 278, EBC, Lucknow.
12
(1993) 3SCC 499
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of a right. However earnest and sincere a wish, a desire or a hope may be and however
confidently one may look to them to be fulfilled, they by themselves cannot amount to an
assertable expectation and a mere disappointment does not attract legal consequences. A pious
hope even leading to a moral obligation cannot amount to a legitimate expectation. 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. Again it is
distinguishable from a genuine expectation. Such expectation should be justifiably legitimate and
protectable. Every such legitimate expectation does not by itself fructify into a right and,
therefore, it does not amount to a right in the conventional sense.”13

The court in this case also said that it is not possible to give an exhaustive list wherein legitimate
expectation arise, but by and large they arise in promotion cases, though not guaranteed as a
statutory right, in cases of contracts, distribution of largess by the government and in somewhat
similar situations.14

The doctrine does not give scope to claim relief straight away from the administrative authorities
as no crystallised right as such is evolved. Where a person’s legitimate expectation is not
fulfilled by taking a particular decision, then decision-maker should justify the denial of such
expectation by showing some overriding public interest.15

DEVELOPMENT OF THE DOCTRINE:

The concept of legitimate expectation made its first appearance in Schmidt v. Secy. of State16,
wherein it was held that an alien who was granted leave to enter the UK for a limited period had
legitimate expectation of being allowed to stay for the permitted period.

This doctrine was reiterated when alien students were refused extension of their permits as an act
of policy by the Home Secretary. The Court of Appeal held that though the students had no right
of extension, revocation of permits would be contrary to ‘legitimate expectation’. 17

13
ibid
14
ibid
15
Kagazi, Jain MC, The Indian Administrative Law, 7th edition, pg-278, Universal Law Publishing Co., New Delhi,
2014.
16
(1969) 1 All ER 904
17
R. v. Home Secretary; (1984) 1 WLR 1337
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ILLUSTRATIONS:

The promise of a hearing before a decision is taken may give rise to a legitimate expectation that
a hearing will be given. A past practise of consulting before a decision is taken may give rise to
an expectation of consultation before any future decision is taken. A promise to confer or, past
practise of conferring a substantive benefit, may give rise to an expectation that the individual
will be given a hearing before a decision is taken not to confer the benefit. The actual enjoyment
of a benefit may create a legitimate expectation that the benefit will not be removed without the
individual being given a hearing.18

DEVELOPMENT OF THE DOCTRINE IN INDIA:

The capacity of apex court to import legal doctrines and to plant them in a different soil is
tremendous. The importation of the doctrine of legitimate expectations is recent. The first
reference to this doctrine is found in State of Kerela v. K.G. Madhavan Pillai19. In this case the
government had issued a sanction to the respondents to open a new unaided school and to
upgrade the existing ones. However after fifteen days a direction was issued to keep the sanction
in abeyance. This order was challenged on the ground of violation of the principles of natural
justice. The court held that the sanction order created legitimate expectation in the respondents
which was violated by the second order without following the principles of natural justice, which
is sufficient to vitiate the administrative order.20

The doctrine was further applied in Scheduled Caste and Weaker Section Welfare Association
v. State of Karnataka21. In this case the government had issued a notification notifying areas
where slum clearance scheme will be introduced. However the notification was subsequently
amended and certain areas notified earlier were left out. The court held that the earlier
notification had raised legitimate expectation in the people living in an area which had been left
out in a subsequent notification and, hence, legitimate expectations cannot be denied without a
fair hearing.22

18
Takwani, C.K., Lectures on Administrative Law, 3rd edition, EBC, Lucknow.
19
(1988) 4 SCC 669
20
Massey, IP, Administrative Law, 6th edition, pg-300, EBC, Lucknow, 2005.
21
(1991) 2 SCC 604
22
Massey, IP, Administrative Law, 6th edition, pg-348, EBC, Lucknow, 2005.
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THE POSITION AND APPLICATION OF THE DOCTRINE IN INDIA:

In India the apex court has developed this doctrine in order to check the arbitrary exercise of
power by the administrative authorities. In private law a person can approach the court only
when his right based on statute or contract is violated but this rule of locus standi is relaxed in
public law to allow standing even when a legitimate expectation from a public authority is not
fulfilled. Therefore, this doctrine provides a central space between ‘no claim’ and a ‘legal claim’
wherein a public authority can be made accountable on the ground of an expectation which is
legitimate.23 For example, if government has made a scheme for providing drinking water in
villages in certain area but later on changed it so as to exclude certain villages from the purview
of scheme then in such a case what is violated is the legitimate expectation of the people in the
excluded villages for tap water and the government can be held responsible if exclusion is not
fair and reasonable.24 Thus this doctrine becomes a part of principles of natural justice and no
one can be deprived of his legitimate expectations without following the principles of natural
justice.

A natural habitat for this doctrine can be found in Article 14 of the Constitution which abhors
arbitrariness and insists on fairness in all administrative dealings. It is now firmly established
that the protection of Article 14 is available not only in case of arbitrary “class legislation” but
also in case of arbitrary ‘State Action’. Thus the doctrine is being held as a fine principle of
administrative jurisprudence for reconciling power with liberty.25

Explaining the nature and scope of the doctrine of legitimate expectation, in Food Corporation
of India v. 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
23
Massey, IP, Administrative Law, 6th edition, pg-300, EBC, Lucknow, 2005.
24
Massey, IP, Administrative Law, 6th edition, pg-300, EBC, Lucknow, 2005.
25
Massey, IP, Administrative Law, 6th edition, pg-301, EBC, Lucknow, 2005.
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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 non-arbitrariness 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.”26

Then again in National Buildings Construction Corporation v. 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 has today 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.” 27

In Punjab Communications Ltd. v. Union of India & Ors., referring to a large number of
authorities on the question, it was 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.28

26
<http://www.legalblog.in/2011/01/doctrine-of-legitimate-expectation-law.html>
27
ibid
28
<http://www.mondaq.com/india/x/320664/Constitutional+Administrative+Law/
Doctrine+Of+Legitimate+Expectation+Overview>
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Very recently, in the case of Jitendra Kumar & Ors. v. State of Haryana & Anr., it has been
reiterated that a legitimate expectation is not the same thing as an 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. 29

CONSEQUENCES:

The existence of a legitimate expectation may have a number of consequences.30

 It may give locus standi to a claimant to seek leave to apply for judicial review
 It may mean that the authority ought not to act so as to defeat that expectation without
justifiable cause.
 It may also mean that before defeating a person’s legitimate expectation, the authority
should afford him an opportunity of making representation on the matter.

The claim based on the principle of legitimate expectation can be sustained and the decision
resulting in denial of such expectation can be questioned provided the same is found to be unfair,
unreasonable, arbitrary or violative of principles of natural justice.

LIMITATIONS:

The doctrine has its own limitations.

 The concept of legitimate expectations is only procedural and has no substantive impact .
In Attorney General for New South Wales v. Quin,31 one Q was a stipendiary
Magistrate in charge of Court of Petty Sessions. By an Act of legislature that court was
replaced by Local Court. Though applied, Q was not appointed under the new system.
That action was challenged. The court dismissed the claim observing that if substantive
protection is to be accorded to legitimate expectations, it would result in interference with
administrative decisions on merits which is not permissible.32

29
ibid
30
Takwani, C.K., Lectures on Administrative Law, 3rd edition, EBC, Lucknow.

31
(1990) 64 Aust LJR 327
32
Takwani, C.K., Lectures on Administrative Law, 3rd edition, pg- 282, EBC, Lucknow.
10 | P a g e

 The doctrine doesn’t apply to legislative activities.

Thus, in R. v. Ministry of Agriculture,33 conditions were imposed on fishing licences.
The action was challenged contending that the new policy was against ‘legitimate
expectations’. Rejecting the argument and dismissing the sanction, the court held that the
doctrine of ‘legitimate expectations’ cannot preclude legislation.
 The doctrine does not apply if it is contrary to public policy or against the security of
state.
Thus in Council of Civil Service Unions v. Minister for Civil Service,34 the staff of
Government Communications Head Quarters (GCHQ) had the right to unionisation. By
an order of the government, the employees of GCHQ were deprived of this right. The
union challenged the said action contending that the employees of GCHQ had legitimate
expectations of being consulted before the Minister took action.
Though in theory, the House of Lords agreed with the argument of the Union about
legitimate expectations, it held that “the security considerations put forward by the
Government override the right of the Union to prior consultation.”
In Union of India v. Hindustan development Corporation, 35 in government contract,
dual pricing policy was fixed by the State authorities (lower price for big suppliers and
higher price for small ones). That action was taken in larger public interest and with a
view to break “cartel”, it was held that adoption of dual pricing policy by government did
not amount to denial of legitimate expectation.

33
(1991) 1 All ER 41
34
(1984) 3 All ER 935
35
(1993) 3 SCC 351
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CONCLUSION:

Legitimate expectation is now considered to be a part of the principles of natural justice. If by

reason of the 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
will be applicable.36 The doctrine of legitimate expectations in essence imposes a duty to act
fairly. Legitimate expectations come in various forms and owe their existence to different kinds
of circumstances.37

Like the bulk of Administrative Law the doctrine of legitimate expectation is also a fine example
of judicial creativity. Nevertheless, it is not extra legal and extra constitutional. 38

The doctrine of legitimate expectation can be invoked if the decisions of the administrative
authority affect the person by depriving him of some benefit or advantage which either:

a) 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
b) 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.39

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.

36
Kagazi, Jain MC, The Indian Administrative Law, 7th edition, pg-279, Universal Law Publishing Co., New Delhi,
2014.
37
Takwani, C.K., Lectures on Administrative Law, 3rd edition, pg-283, EBC, Lucknow.
38
Massey, IP, Administrative Law, 7th edition, pg-359, EBC, Lucknow, 2007.
39
ibid
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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 doctrine has negative and positive contents both. If applied negatively an administrative
authority can be prohibited from violating the legitimate expectations of the people and if applied
in a positive manner an administrative authority can be compelled to fulfil the legitimate
expectations of the people. 40

This doctrine, thus is based on the principle that public power is a trust which must be exercised
in the best interest of its beneficiaries i.e. the people.

40
Massey, IP, Administrative Law, 7th edition, pg-359, EBC, Lucknow,2007.
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BIBLIOGRAPHY:

 Massey, I.P., Administrative Law, 7th edition, EBC, Lucknow.

 Jain, M.P., S.N. Jain, Principles of Administrative Law, 5th edition, Wadhwa, Nagpur.
 Takwani, C.K., Lectures on Administrative Law, 3rd edition, EBC, Lucknow.

 Sathe, S.P., Administrative Law, 7th edition, Lexis Nexis, Gurgaon.

 Kagazi, Jain M.C., The Indian Administrative Law, 7th edition, Universal Law Publishing
Company, New Delhi.

WEB RESOURCES:

 http://www.legalblog.in/2011/01/doctrine-of-legitimate-expectation-law.html
 http://www.mondaq.com/india/x/320664/Constitutional+Administrative+Law/
Doctrine+Of+Legitimate+Expectation+Overview
 http://www.ijtr.nic.in/articles/art13.pdf