DOCTRINE OF "LEGITIMATE EXPECTATION

INTRODUCTION
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

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

1 2006 (8) SCJ 721

2 Administrative Law. 6th Edn. by HWR Wade at page 522.

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 standi to make such a claim.

3 Halsbury's Laws of England Vol. I (1) 4th Edition para 81 at page 151-152.

4 U.P. Awas Evam 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 officers acted 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-

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.

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

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 acted

so unreasonably that no reasonable authority would have

made the decision;

(iii) procedural impropriety, where the decision-making authority

has 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.

9 Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC
509

10 CCSD vs. Minister for the Civil Service, (1984) 3 AII.ER 935
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,

(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.

11 (1984) 3 All EA 935 at 949

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
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.

12 Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 S(.; 538
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 Art. 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 bonafides 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

13 F.C.I. v. Kamdhenu Cattle Fee Industries, (1993) 2 SCC 71.