DOCTRINE OF LEGITIMATE EXPECTATION

[Mr. M. GOVINDARAJAN]

One of the important principles is the ‘doctrine of legitimate expectation’, which is an outcome of synthesis between the principle of administrative fairness (a component of the principles of natural justice) and the rule of estoppel. The doctrine of ‘legitimate expectation’imposes in essence a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The doctrine of ‘legitimate expectation’ has been judicially recognized by the Indian Supreme Court and this recognition has paved the way for the development of a broader and more flexible doctrine of fairness.

The judicial evolution of the doctrine of ‘legitimate expectation’ can be traced to the opinion of the Judicial Committee delivered by Lord Fraser in ‘Attorney-General of HongKong vs. Ng Tuen Shiu.’ (1983) 2 A.C. 629. Ng was an illegal immigrant from Macau. The government announced a policy of repatriating such persons and stated that each would be interviewed and each case treated on its merits. Ng. was interviewed and his removal ordered. His complaint was that at the interview he had not been allowed to explain the humanitarian grounds on which he might be allowed to stay, but only to answer the questions put to him; that he was given a hearing, but not the hearing in effect promised, as the promise was to give one at which ‘mercy’ could be argued. The judicial Committee agreed that, on that narrow point, the government’s promise had not been implemented; his case had not been considered on its merits, and the removal order was quashed. Ng succeeded on the basis that he had a legitimate expectation that he would be allowed to put his case, arising out of the government promise that everyone affected would be allowed to do so.

In ‘Council of Civil Service Unions vs. Minister for the CivilServices,’ (1984) 3 All E.R. 935 the Prime Minister issued an instruction that civil servants engaged on certain work would no longer be permitted to the members of trade unions. The House of Lords held that those civil servants had a legitimate expectation that they would be consulted before such action was taken, as it was a well-established practice for government to consult civil servants before making significant changes to their terms and conditions of service. In this case, it may be noted, legitimate expectation arose not (as in Ng) out of a promise, but out of the existence of a regular practice which could reasonably be expected to continue.

In ‘Navjyoti Coop. Group Housing Society v. Union of India’ 1992 (9) TMI 318 - SUPREME COURT OF INDIA the Supreme Court recognized that by reason of application of the said doctrine, an aggrieved party would be entitled to seek judicial review, “if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment such reasons”. In this case the seniority as per the existing list of cooperative housing society for allotment of land was altered by subsequent decision. The previous policy was that the seniority amongst housing societies in regard to allotment of land was to be based on the date of registration of the society with the Registrar. But on 20.1.1990, the policy was changed by reckoning seniority as based upon the date of approval of the final list by the Registrar. This altered the existing seniority of the society for allotment of land. The Supreme Court held that the societies were entitled to a “legitimateexpectation” that the past consistent practice in the matter of allotment be followed even if there was no right in private law for such allotment. The authority was not entitled to defeat the legitimate expectation of the societies as per the previous seniority list without some overriding reason of public policy as to justify change in the criterion. No such overriding public interest was shown.

In ‘Union of India V. International Trading Co’ –2003 (5) TMI 480 - SUPREME COURT OF INDIA it was held that the applicability of doctrine is a question of fact and that for invoking the doctrine of legitimate expectation there has to be a foundation.

In ‘Travel Agents Association of India V. Balmer Lawrie & Co and others’ –2013 (10) TMI 48 - COMPETITION APPELLATE TRIBUNAL the appellant assailed the Government Memo No. 19024/1/E,iv/2005, dated 24.03.2006 issued by the Ministry of Finance, Department of Expenditure, Government of India, wherein it was directed that the Government officials to purchase travel tickets/tour exclusively from Balmer Lawrie & Co. Limited and/or Ashok Travel & Tours Limited.   The appellant alleged that this office memo was in contravention of provision of Sec. 4 of the Competition Act. In short, it was averred that the Government had position of dominance and the same was being used only in favor of M/s Balmer Lawrie & Co and Ashok Travels & Tours Limited thereby depriving the other travel agents who were member of the informant/appellant business. The appellant contended that the Government had acted in a most unreasonable manner in taking out the aforesaid Government Memorandum.   The Government was expected to provide free and fair opportunities to all the players and adopt a fair and transparent system of procuring tickets and tours for the officials.   The appellant justified the stand on the ground that if the private players were allowed in the sector it would be definitely cost effective.   The appellant thus invoked the doctrine of legitimate expectation.   The Competition Appellate Tribunal held that the appellant has not made out any case whatsoever for invoking this doctrine.   Merely because the Government is a purchaser of air tickets and every ticketing agency cannot have expectation much less legitimate expectation that the Government would deal with it.   No foundation has been made in this case by the appellant.   In fact no particular ticket agency could claim any right in the matter of dealing with the Government.   The Government like any other consumer has a right with the agency that it likes.