DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

Final Draft

ADMINISTRATIVE LAW

New dimensions of 'Doctrine of Legitimate Exceptions'

Submitted to: Submitted by:

Dr.Aparna Singh Semester

 NEW DIMENSION OF DOCTRINE OF "LEGITIMATE
EXPECTATION”

The Word "Legitimate Expectation" is not defined by any law for, the time being in force. Yet it
is another doctrine fashioned by the Court to review the administrative action.

"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

1
2006 (8) SCJ 721
Concept of legitimate expectation in administrative law has now gained sufficient importance.
"Legitimate Expectation" is the latest recruit to the long list of concepts fashioned by the Courts
for the review of administrative actions, and this creation takes its place beside such principles as
the rules of natural justice, unreasonableness, the judiciary duty of local authorities and in future
perhaps, the principle of proportionality.

It was, in fact, for the purpose of restricting the right to be heard that 'legitimate expectation' was
introduced into the law. It made its first appearance in an English case where alien students of
'Scientology' were refused extension of their entry permits as an act of policy by the Home
Secretary, who had announced that no discretionary benefits would be granted to this sect. They
had no legitimate expectation of extension beyond the permitted time and so no right to a
hearing, though revocation of their permits within that time would have been contrary to
legitimate expectation. Official statements of policy may cancel legitimate expectation; just as
they may create it.2

"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 from a representation or promise made by the authority
including an Implied representation or from consistent past practice.3

No order can be passed without hearing a person if it entails civil consequences. Where even
though a person has no enforceable right yet he is affected or likely to be affected by the order
passed by a public authority, the doctrine of legitimate expectation come into play and the person
may have a legitimate expectation of being treated in a certain way by an administrative
authority.4

A case of legitimate expectation would arise when a body, by representation or by past practice,
aroused expectation which would be within its power fulfil. The protection is limited to that
extent and the judicial review can be within those limits. A person, who bases his claim on the
Doctrine of legitimate expectation. In the first instance, must satisfy that there is a foundation
and thus has locus standii to make such a claim.
2
Administrative Law. 6th Edn. by HWR Wade at page 522.
3
Halsbury's Laws of England Vol. I (1) 4th Edition para 81 at page 151-152.
4
U.P. AwasEvam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326.
Legitimate expectations may come in various forms and owe their existence to different kinds of
circumstances e.g. cases of promotions which are in normal course expected, contracts,
distribution of largess by the Government and somewhat similar situations i.e. discretionary
grants of licences, permits or the like, carry with it a reasonable expectation though not a legal
right to renewal or non-revocation, and to summarily disappoint that expectation may be seen as
unfair without the expectant person being heard. The court has to see whether it was done as a
policy or in the public interest. A decision denying a legitimate expectation based on such
grounds does not qualify for interference unless in a given case the decision or action taken
amounts to an abuse of power. Therefore, the limitation is extremely confined and if the doctrine
of natural justice does not condition the exercise of the power, the concept of legitimate
expectation can have no role to play and 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. In a case where the decision is left entirely to the
discretion of the deciding authority without any legal bounds and if the decision is taken fairly
and objectively the Court will not interfere on the ground of procedural unfairness to a person
whose interest based on legitimate expectation might be affected. 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.5

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.6

5
Union of India v. Hindustan Development Corpn., (1993) 3 SCC 499 at 548
6
(1984) 3 All. EA 935 at 954.
Legitimate, or reasonable, expectation may arise from an express promise given on behalf of a
public authority or from the existence of a regular practice which the claimant can reasonably
expect to continue.7 The expectation may be based on some statement or undertaking by or on
behalf of the public authority which has the duty of taking decision, If the authority has through
its officersacted in a way that would make it unfair or inconsistent with good administration for
him to be denied such an inquiry.

The expectation cannot be the same as anticipation. It Is different from a wish, desire or a hope
nor can it amount to a claim or demand on the ground of a right. Howsoever earnest and sincere
a wish, a desire or a hope may be and howsoever 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 established procedure followed
in regular and natural sequence. It is also 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.8

Legitimate expectation gives the applicant sufficient locus stand; for judicial review. This
doctrine is to be confined mostly to right of a fair hearing before a decision, which results In
negating a promise or withdrawing an undertaking, Is taken. The doctrine does not give scope to
claim relief straightway from the administrative authority as no crystallised right, as such, is
involved.

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;
3. Such an expectation must be reasonable.9
7
R. v. Secretary of State of Transport Exporte Greater London Council, (1985)3 AlI.ER
8
Union of India v. Hindustan Development Corpn., (1993)3 SCC 499 at 540.
9
Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509
The doctrine of legitimate expectation arises only in the field of administrative decisions. If the
plea of legitimate expectation relates to procedural fairness there is no possibility whatsoever of
invoking the doctrine as against the legislation.

Administrative action is subject to control by judicial review under three heads :-

(i) Illegality, where the decision-making authority has been guilty of an error of law e.g. by
purporting to exercise a power which it does not possess.
(ii) Irrationality, where the decision-making authority has actedso unreasonably that no
reasonable authority would havemade the decision;

(iii) Procedural impropriety, where the decision-making authorityhas failed in its duty to act
fairly.10

Judicial review provides the means by which judicial control of administrative action is
exercised. The subject matter of every judicial review is a decision made by some person or a
refusal by him to make a decision.

The decision must have consequences which affect some person (or body of persons) other than
the decision maker although it may affect him too. It must affect such other 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 enjoy until there has been communicated to
him some rational ground for withdrawing it on which he was to be given an opportunity to
comment or,

10
CCSD vs. Minister for the Civil Service, (1984) 3 AII.ER 935
(ii) He has received assurance from the decision maker that it will not be withdrawn without
giving him first an opportunity of advancing reasons for contending that they should be
withdrawn.11

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. Therefore, even if substantive protection of such expectation is contemplated that does
not grant an absolute right to a particular person.

Legitimate expectation being less than a right operates in the field of public and not private law
and to some extent such legitimate expectation ought to be protected not guaranteed.

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.

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 Art. 14 of the
Constitution of India but a claim based on mere legitimate expectation without anything more
cannot 'ipso facto' give a right to invoke these principles.

It is now well established that while Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation. In order, however, to pass the test of
permissible classification two conditions must be fulfilled, namely.

(i) That the classification must be founded on an intelligible differentia which distinguishes
persons or things that are grouped together from other left out groups, and

(ii) That that differentia must have a rational relation to the object sought to be achieved by
the statute in question.

The classification may be founded on different bases namely geographical or according to

objects or occupations or the like. What is necessary is that there must be a nexus between the

11
(1984) 3 All EA 935 at 949
basis of classification and the object of the Act under consideration. Article 14 condemns
discrimination not only by a substantive law but also by a law of procedure.12

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.

The mere reasonable or legitimate expectation of a citizen 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 tact 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. The doctrine of legitimate expectation gets assimilated in the rule of law.

In contractual sphere, as in all other State actions, the State and all its instrumentalities have to
conform to Article 14 of the Constitution of which non-arbitrariness is a significant facet. There
is no unfettered discretion in public law. A public authority possesses powers only to use them
for public good. This imposes the duty to act fairly and to adopt a procedure which is fair play in
action. To satisfy this requirement of non- arbitrariness in a State action, it is, necessary to
consider and give due weight to the reasonable or legitimate expectations of the persons likely to
be affected by the decision and also that unfairness in the exercise of the power may amount to
an abuse or excess of power apart from affecting the bona-fides of the decision in a given case.
Rule of law does not completely eliminate discretion in the exercise of power, as it is unrealistic,
but provides for control of its exercise by judicial review.13

This Doctrine has now finds its way in the Partnership Law through Ebhraimi v. Westbourne
Galleries Ltd, further it has also find its place in the Corporate Law mostly in the cases of
oppression.

12
Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 S (538)
13
F.C.I. v. Kamdhenu Cattle Fee Industries, (1993) 2 SCC 71.