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Understanding the Doctrine of Legitimate Expectation: Balancing Rights and Administrative Discretion

The Doctrine of Legitimate Expectation has been accepted as part of our law and the judge who is the decision maker of the issue can be normally compelled to give effect to his representation in regard to the expectations set based on previous conducts until the public interest comes in the way.

  1. Firstly, there should be a representation.
  2. The representation should be based on past conduct.
  3. Reliance must be placed on the said representation, and
  4. The person being represented must suffer a detriment.

The important question is whether the decision maker can sustain the change in policy using the Wednesbury principles of rationality which basically helps you find out whether the change from one policy to another is justified or can the court go into question whether the decision maker has properly balanced the legitimate expectation as against the need for a change? The policy is the policy of the maker alone.

The court does not have the right to judge the merit of the decision of the policy. It can only determine the fairness of the decision. The Doctrine of Legitimate expectation merely gives the court the right to find out whether the change in policy which caused the defeat of legitimate expectation is irrational or unreasonable.

In the case, Council of Civil Services Unions v. Minister for the Civil Services (1985 ACC 374), Lord Diplock stated when legitimate expectation can be put to use.
  • When the decision of administrative authority deprives a person of some advantage which he/she:
    1. The advantage was enjoyed by a person and it is reasonably expected to continue until there is a communication which consists of rational grounds to for withdrawal of the advantages. The person is also given an opportunity to comment on it.
    2. The decision maker is given an assurance that the benefits received by him will not be withdrawn until he is given an opportunity to state reasons as to why such services should be given to him.

These two points go to the procedural part of the Doctrine.
The substantive part of the doctrine is that if a representation is made that a benefit of a substantive nature is granted or when someone is already receiving a benefit of such nature, then it will continue to be so and will not change then the same could be enforced. In this case, Lord Frasser observed that civil servants have a legitimate expectation they will be consulted before their trade union membership is withdrawn. This is because that was how it was done in the past.

Lord Diplock added to it stating that a legitimate expectation should be:
  • � Practicable,
  • � Clear and unambiguous,
  • � Based on express promise or representation,
  • � Based on past actions of settled conduct,
  • � Representation of an individual or a group of persons.

In the case, National Building Construction Corporation v. S Ranghu Nattam (AIR 1998 SC 2279) it was held that the Doctrine of Legitimate Expectation has both substantive and procedural aspects. The principle has developed in the context of reasonableness and natural justice.

Position in India:
It is an accepted principle in the courts in India. In the case, Navjyoti Co-op Group Housing Society v. Union of India (AIR 1993 SC 155: 1992(4) SCC 477) seniority as per the existing list of co-operative housing societies for allotment was altered by a subsequent decision. Previously, it was based on the date of registration of the society. But after the change in policy, seniority is based on the date of approval of the final list by the registrar.

The Hon'ble Court held that the Doctrine of Legitimate Expectation is applicable as the society will have an expectation that the past conduct will be followed even if such a right for allotment is not present in the private law. The legitimate expectation of the people should not be affected without a justifiable reason. If the authority wants to do so, an opportunity should be given to make a representation in the matter. The doctrine imposed in essence, a to duty act fairly by taking into consideration all relevant factors.

In Food Corporation of India v. M/s Kamadhenu Cattle Feed Industries ((1993) 1 SCC 71) the petitioner invited bidders for the sale of a stock of damaged foodgrains and the respondent's bid was the highest. All tenders were invited for negotiation but the respondent did not raise his bid but others did. The respondent filed a suit contending that he had a legitimate expectation that he will win the bid as his bid was the highest.

The high court allowed the petition but this was reversed by the Supreme Court. It held that just because a bid was the highest does not mean it will get accepted. If the Corporation had a reasonable justification or non-acceptance it cannot be called arbitrary. The procedure of negotiation involved giving weight to the legitimate expectation of the highest bidder, which was sufficient.

In Union of India v. Hindustan Development Corporation ((1993) 3 SCC 499) the court highlighted how to infer the legitimacy of expectations. The legitimacy of expectations can be inferred only when it is founded on the sanction of law, custom, or an established procedure followed in regular and natural consequences. The expectations should be legitimate, practicable, and justifiable. The doctrine gives the applicant the right to seek judicial review. The legitimate expectation need not be protected where an overriding public interest requires otherwise. The burden of showing such overriding public interest lies on the decision-maker.

Can the Doctrine of Legitimate Expectation be claimed as a right?
In the case State of Bihar v. Dr. Sachindra Narain (AIR 2019 SC 705) the Supreme Court held that Legitimate expectation is one of the grounds of Judicial Review but if there is no legal obligation, legitimate expectation cannot exist. The Supreme Court stated that "it is not a wish or desire or a hope". Therefore it cannot be claimed as a right.

When an expectation is not legitimate and a modification of assurance and change in policy is made, it cannot be held as disproportionate, unreasonable, or arbitrary. Such an action is done to strike a balance between competing interests as held in Kerala State Beverages (M and M) Corporation Ltd v. P.P.Suresh (AIR 2019 SC 5222)

When a scheme is terminated or is no longer in existence no vested right or legitimate expectations can be claimed under such a scheme. Providing relief to terminated schemes will be considered a violation of the law.

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