Omkar Upadhyay
ABSTRACT
The doctrine of legitimate expectations, an offshoot of natural justice, developed in England to put reins on the administrative bodies by holding them accountable to their own words and past practices. The doctrine essentially served as a path to bypass the traditional requirement of ‘rights’ possessed by the claimant and subsequent ‘duty’ possessed by the administrative or governmental body to hold the latter liable in law. In due course of time, the doctrine permeated in jurisdictions of various countries which like the inventor of it applied it in the public law domain, particularly in the administrative law. However, this isolation of the doctrine in the public law domain has been relaxed, to some extent, in certain jurisdictions that have made way for legitimate expectations to accrue even when two private individuals are involved. This has been particularly done in employment and contractual matters. This article would thus analyse this changing contour of legitimate expectations and would unravel the public-private dichotomy surrounding its applications. Moreover, the article would also bring forth the current standing of the Indian Apex Court on the doctrine’s application and its undue leaning toward the traditional view, which in the opinion of the author is a narrow one.
Keywords: legitimate expectations, natural justice, public-private dichotomy, administrative law.
1. INTRODUCTION
The principles of natural justice are meant to fill the voids left by the written letters of the statute and therefore, ideals of natural justice supplant, rather than substitute, the express provisions of law.[1] Natural justice in effect emerged to blunt the harm resulting from the lapses in procedural aspects of law. This branch of judge-made rules and the emerging principles soon, to some extent, received statutory recognition, while most of the principles still remain tacit in recognition though evident in application. The doctrine of legitimate expectations is one such principle of natural justice. Having its roots in natural justice, the doctrine aims to ensure that the viable claims of the people get satisfied even though such claims are not justifiable in the eyes of law in the strict sense and thus ensure the ultimate aims of fairness and reasonableness.
The developers of the doctrine, British Courts, have since its inception applied legitimate expectations to control the unruly horses, the administrative and other governmental bodies, by using the doctrine as a rein. In doing so, they have, though not intentionally, isolated the application of this doctrine in the realm of public law. Similar has been the case with Indian Courts, which have assimilated yet another of the common law principles in deciding cases involving administrative authorities. This traditional approach, in the opinion of the author, is narrow in scope concerning only the public law domain. Certain Courts in other jurisdictions have come to apply this doctrine in private law matters too, especially in employment and contractual matters. Thus, the shackles of traditional view have seemingly been done away with and the doctrine is now permeating other domains hitherto believed to be outside its purview. This approach, in contradistinction to the traditional one, can well be regarded as the broader approach. Nonetheless, the Indian courts have failed to appreciate the broader perspective and have sought to stick to the traditional approach and even negativing the permeation of the doctrine in contractual matters.
Given this backdrop, this research would thus seek to analyse this public-private dichotomy which surrounds the doctrine of legitimate expectation by weighing and contrasting the two approaches as they presently exist. In doing so, the author would also unravel the origins and historical development of the said doctrine in England and India and would discuss the intricacies of the doctrine in depth. The argument here is that the current isolation of the doctrine is unwarranted and void of substantial reasoning, as being a principle of natural justice, it is meant to be of all-embracing character.
2. BY-PASSING THE RIGHTS REQUIREMENT: TRACING THE EVOLUTION OF THE DOCTRINE
A doctrine of legitimate expectations, of public law domain, grew particularly as an equitable remedy to by-pass the traditional ‘rights’ requirement, wherein for the claim to be justifiable in law, the claimant must show that his/her rights have been violated by the opposite side which owed some duty.[2] Originated in England, the doctrine was soon assimilated into the wider umbrella of natural justice and came to be applied in various countries. While even today it remains an element of natural justice, the Indian Courts have made the doctrine a part of constitutional principles applicable to governmental and administrative authorities.[3]
2.1.Development in England
The doctrine of legitimate expectations owes its existence to the seminal observation of Lord Denning in Schmidt v. Secretary for Home Affairs[4] wherein the status of certain alien students as to their continued residence in the United Kingdom beyond the prescribed time was in hinges. The foreign alien students here wanted their stay to be extended by the Home Secretary for the completion of their studies to which the latter refused. The petitioner students based their claim on the fact that they have been earlier allowed extension for two times and refusal this time is prejudicial to their interest and void of reason and fairness. The Court, however, noted that the students did not have any legitimate expectations of being allowed an extended stay. While negativing the petitioner’s, the Court however recognised ‘legitimate expectations’ as an alternative, or rather a by-pass, to the requirement of rights. On clarifying what constitutes legitimate expectations, Halsbury’s Law of England puts it as:
“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.”[5]
From the above description, it is evidently clear that the doctrine was sought to be of application against a decision of an administrative authority that was in breach of legitimate expectations of the claimant who otherwise did not possess any right in law to proceed with the claim. As to when would such expectations would legitimately arise, it was settled in the landmark pronouncement of Council of Civil Services Union v. Minister for the Civil Services[6]. Lord Fraser stated that such legitimate expectations may either accrue from an express promise given by or on behalf of a public authority or may arise from the past practices which are legitimately anticipated to be continued.[7] In another judicial pronouncement, the basis of the doctrine was further concretised. The case of Attorney General of Hong Kong v. Ng Yuen Shiu[8] concerned the right of hearing of an immigrant against whom a removal order had been passed by the Director of Immigration without having the claimant being heard while the order of the government specifically provided that each immigrant’s case would be heard on merits. The claimant based his claim on the legitimate expectation of being heard before a prejudicial order affecting his rights is passed by the governmental authority. Upholding the petitioner’s contention, the Privy Council noted that,[9]
“In opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal 26 immigrants.”[10]
The judges were thus of the view that deviance from the express promises made would make the authority liable in law. However, the Privy Council also put a fetter in the application of the doctrine that such expectations would be side-lined if they are in conflict with express provisions of law. This limitation was further accepted in a later pronouncement.[11]
In various later pronouncements, the Court fastened liability on the government and administrative authorities for pulling back from their express promises. For instance, the Court noted that if an authority prescribes a procedure to be followed or a criterion to be fulfilled, such prescriptions may create an impression in the mind of the public which they legitimately expect to be adhered to by such authority.[12] Thus the rationale for introducing the doctrine as part of natural justice and rule of law is to ensure accountability of the administrative bodies in their dealings with the public where the acts of the former are bound to affect the interests of the latter. It is also to ensure that “promises intended to be binding, intended to be acted upon are in fact acted upon.”[13] This doctrine has also been referred to and described in different phraseologies such as the “rule of protection of legitimate confidence”[14] which seemingly can be equated to legitimate expectations.
Conclusively, it can succinctly be put that the doctrine of legitimate expectations, which evolved in England, is aimed at protecting the rights of an individual when is unable to claim any. Moreover, the Courts have, in course of years, put certain fetters on the doctrine, one being the weighing scale of public interest[15] and the other being express statutory provision in contrary to the expectations[16]. Therefore, when the larger public interest warrants side-lining the expectations, they can be denied.[17] One thing which is evidently clear from the above pronouncements is that the doctrine has found solace in the public law realm where claims are being made from the administrative or governmental bodies.
2.2. The Doctrine’s Import in India: Tracing Roots from within the Constitution
The principles of natural justice were incorporated by the Indian judiciary adopting an activist magnitude in the pronouncement of Maneka Gandhi v. Union of India[18] wherein the roots of natural justice were uncovered from within the Constitution itself. Like other principles of natural justice, the doctrine of legitimate expectations too was welcomed and it is relatively of recent import established in the background of principles of natural justice.[19]
The Supreme Court for the first time recognised legitimate expectations in State of Kerala v. K.G. Madhavan Pillai[20]. The government, in this case, had given certain aid and sanction to the petitioner-respondents here to establish new schools. However, after 15 days, this aid was held back by an order. The Court while adjudicating upon the dispute noted that the earlier decision to grant aid for the establishment of schools created legitimate expectations which were breached by the subsequent order restricting the aid. The Court went on to note that such a breach would be tantamount to a violation of principles of natural justice. What is to be noted here is that the claimants, in this case, did not possess any right to claim the aid from the government for opening the schools, but their claim was nonetheless satiated by the Court on the basis of the doctrine of legitimate expectations. Thus, when certain policies of the government are made public via official notifications, such publication creates legitimate expectations in the minds of the public which cannot be breached by a subsequent notification stating otherwise.[21]
The Indian Courts’ interpretation of the doctrine, in consonance with the British Courts, has been succinctly laid in Union of India v. Hindustan Development Corporation[22], wherein the Court noted that,
“Time is a threefold present: the present as we experience it, the past as a present memory and future as a present expectation. For legal purposes the expectation cannot be the 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 of a right.”[23]
The Court further noted that for an expectation to be legitimate, its basis must be founded upon sanction of law or an established procedure followed regularly. In adopting the common law doctrine of legitimate expectation, the Supreme Court has made the principles of equality as enshrined in the Constitution[24], its repository. Thus, the basis of legitimate expectation flows from Article 14.[25] Therefore, if the legitimate expectations have been denied, such action would not only breach the principles of natural justice but would also amount to a violation of ideals of the Constitution namely, the principle of non-discrimination and non-arbitrariness. On similar lines, the Court in F.C.I. v. Kamdhenu Cattle Feed Industries[26] categorically stated that when the State and its instrumentality deals with the public at large and raises legitimate expectations in the latter’s perception, the nonfulfillment would leave a taint of arbitrariness in the actions of the State.
In National Building Construction Corporation v. S. Raghunathan[27], the Supreme Court was of the view that for a claim of legitimate expectations to succeed, the claimant must have suffered ‘detriment’ as a result of deviance from the prescribed procedure. It is only when the claimant has suffered a detriment because of his reliance on representation from the government that a claim would succeed by application of the doctrine. On the question of when can the doctrine be successfully applied the Court in Madras City Wine Merchants Association v. State of Tamil Nadu[28] gave the following prerequisites; “(a) if there is an express promise given by the public authority, (b) because of the existence of a regular practice which the claimant can reasonably expect to continue, and (c) such an expectation must be reasonable.”[29] The test of reasonableness would essentially be of expectation of a bonus paterfamilias.[30]
The Indian approach has been in consonance with the approach of the British Courts, like the latter, they have also applied the doctrine when the claimant is a private individual and the opposite side is either State or its instrumentalities or any administrative authority. The doctrine is thus one of the newest means of putting checks on the unreasonableness and uncertainty emanating from administrative actions.[31] Apart from ensuring reasonableness, the Indian Courts have also sought to apply the doctrine to ensure that there is consistency in State actions.[32] Thus in doing so, the Court has sought to intermix the doctrine of legitimate expectations, a product of the United Kingdom, with the ‘consistency principle’ as prevalent in the United States (US). As per the dictums of the US Courts, “the consistency principle is closely related to the rule of law, which recognizes that each citizen has a legitimate expectation and that the actions of public officials will be consistent with the existing law and legal practices.”[33] Though seemingly similar, the two concepts differ. While the consistency principle may be a limb of legitimate expectations doctrine, however, the latter is wider in connotation and aims at more than merely maintaining consistency. Another difference between the two rules is that legitimate expectations are sought to accrue, as per the British pronouncements, only on executive and administrative actions, the consistency principle also takes within its ambit judicial decisions too.[34]
3. LEGITIMACY OF EXPECTATIONS: PROCEDURAL AND SUBSTANTIVE
The legitimate expectations of an individual in its dealing with the government may originate either with respect to procedural aspects of administration or substantive benefits which he anticipates to be poured on him from the authorities. While the latter has had a long history of application, the latter is of a rather new import. Though earlier there existed a dichotomy between “procedural” and “substantive” application of the doctrine, they have today come to be now applied in tandem.[35]
3.1. Procedural Expectations
The two pivotal principles of natural justice; nemo in propria causa judex, esse debet (no one should be made a judge in his own case) and audi alteram partem (no one should be condemned unheard)[36] aims at ensuring procedural propriety and to make sure that the process of law is void of unreasonableness and arbitrariness. Thus, if a decision is to be taken by an administrative authority that would have a direct bearing on the rights, interest, or status of the concerned party, it is of importance that he should be allowed to make his representations before such adjudicating authority and furnish his defence before it in forms of evidence or testimonies. Thus, the essence of the right to being heard is that before a prejudicial order is passed against an individual, natural justice warrants him to speak, himself or through legal representation, before the authority and present his side of the story.[37]
The procedural aspect of the doctrine thus seeks to ensure that when representations or past practices of an administrative or governmental body create an impression, legitimate in law, that before any decision of civil consequences is made, the parties would be heard, such bodies subsequently cannot do away with this opportunity as they would now be bound by the legitimate expectations.[38] Thus the doctrine, in the initial years of its inception, was to ensure procedural justice for the citizen.[39] The earlier decisions of the courts leaned particularly on this portion of the doctrine and to some extent negated the presence of “substantive” legitimate expectations. For instance, in one of the Canadian court’s pronouncements, it was categorically stressed that the content of the doctrine was purely procedural in nature and thus there cannot arise any substantial benefits or entitlements through its application.[40]
Thus, the initial view of the doctrine was merely as a device in the hands of the citizens to ensure that principles of natural justice, as elaborated above, are followed and in case there was non-observance of those principles in the procedures, the doctrine would come into play. The aim was, and is, to ensure procedural fairness and root out arbitrariness in administrative actions.
3.2. Substantive Legitimate Expectations
After the initial years of the doctrine’s use in the matters of adjudication, it soon came to be applied in cases where the claimants asked for more than mere fulfilment of procedural requirements, that is, substantive benefits. The content of substantive legitimate expectations has been succinctly put in Ng Siu Tung and Others v. Director of Immigration[41] as,
“The doctrine recognizes that, in the absence of an overriding reason of law or policy excluding its operation, situations may arise in which persons may have a legitimate expectation of a substantive outcome or benefit, in which event failing to honour the expectation may, in particular circumstances, result in such unfairness to individuals as to amount to an abuse of power justifying intervention by the court.”[42]
Thus, substantive legitimate expectations would arise when the representations themselves suggest for certain benefits to be given other than the mere following of prescribed procedure. The substantive part of this doctrine is that when there are representations that substantive benefits will be granted or if such benefits were already given and the representations suggest the continuance of such benefits, then the rule of legitimate expectations requires such benefits to be given or continued in consistency with earlier practices.[43] Even the Indian authorities have accepted the substantive limb of the doctrine. For instance, in M.P. Oil Extraction v. State of M.P.[44] the question before the Court was whether a particular industry has legitimate expectations for renewal of the agreement on the basis of past practices. The Court answered in the affirmative to this question and thus essentially gave certain benefits on the basis of expectations. Similarly, in the National Buildings Construction Corporation[45] case the three-judge bench of the Supreme Court firmly acknowledged that doctrine of legitimate expectations has both aspects; procedural and substantive.
Recognition of substantive legitimate expectations has also been viewed as, to some extent, an addition to the test of reasonableness. This is in addition to the test of reasonableness laid in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[46] which is famously known as the “Wednesbury reasonableness test”. Thus, when a governmental authority reneges from its promises or deviates from its past practices, such actions would also be adjudged as unreasonable by the courts. Nonetheless, it has been held that a change in policy resulting in the breach of expectations would be justified if that change satiates the Wednesbury test.[47] Thus the doctrine could be side-lined if the requirements of reasonableness have been met with.
The two aspects, procedural and substantive, have now come to be realised as part of one single scheme, a deviation from the earlier lopsided view which recognised only the former aspect. The courts have since held that the procedural aspect precedes the successful application of the substantive part and thus rather than contrast, they supplant each other.[48]
4. UNRAVELLING THE PUBLIC-PRIVATE CHASM: LEGITIMATE EXPECTATIONS IN CONTRACTUAL MATTERS
4.1.Traditional View Hitherto: A Narrow One?
The doctrine of legitimate expectation has been employed by the courts to make public authorities and bodies perform acts that they promised to perform.[49] Further, the doctrine has been sought as something which would ensure fairness and reasonableness.[50] Though the doctrine was aimed to serve noble purposes, the courts, English and Indian, have restricted the scope of the doctrine. Though the doctrine has its “genesis” in administrative law[51], it does not automatically exclude its operation in other branches of law. The preceding sections and the multiple foreign and indigenous authorities covered therein bring forth the pertinent observation that the doctrine of legitimate expectations, whether procedural or substantive, has been actively applied by the courts, but in doing so, the ambit of the doctrine has been circumscribed and relegated to only the public law sphere. The doctrine has hitherto been used as a leash to control the administrative and governmental actions from turning into arbitrary and unreasonable. This has surely ensured that the dealings between private individual on the one side and the government on the other side is fair and the discretion of the latter is exercised in a logical manner sympathetic to the interest of the public at large, but at the same time, the courts, especially of England and India have made one thing clear without any cloud of doubt that the said doctrine would be of no application when both the parties are private individuals having no link with the government.[52]
In Hindustan Development Corporation[53] it has been made evidently clear that legitimate expectation doctrine concerns only the actions of the State. Similarly, the court in Industrial Fuel Company Pt. Ltd. v. Heavy Engineering Corporation[54] and A.C. Roy and Co. and Others v. Union of India[55], both being High Court judgements, have specifically held that the doctrine of legitimate expectation has no application when it comes to disputes which have their genesis in a contractual matter and the said doctrine is only applicable in cases dealing with State action. In another pronouncement[56], such a position was reiterated. It was in clear words put that the principles which flow from the doctrine of legitimate expectations, do not and cannot be applied in the contractual field.[57] One peculiarity is to be witnessed here, which is that while on one hand it has been in clear words stated that the doctrine has no application in matters of contract, there also exists certain judicial pronouncements which say otherwise. In the Kamdhenu[58] verdict, the court stated that “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.” The court in the said case went on to apply the doctrine of legitimate expectations in favour of the aggrieved party in the dispute which arose out of the contract. The only distinguishing feature between the pronouncements disfavouring application of the doctrine in contractual matters and the judgments favouring it is the presence or absence of State as a party. Therefore, when State was a party to a contract, the doctrine has been effectively applied in contractual matters, whereas an opposite stance is taken where both parties are private individuals despite the fact the dispute is in essence the same, arising out of contract. This in itself is the evidence of the fact that the doctrine has been kept in isolation segregating the public and private spheres.
This is true not only for the Indian courts, but certain judgements of foreign courts too, have ruled on similar lines of reasoning.
4.2. Permeation in Private Domain: Breaking the Shackles and Application of Doctrine in Contractual Matters
This narrow and isolated application of the doctrine in the recent past has witnessed a change in the form that certain courts have come to apply the said doctrine in employment and purely contractual matters. Employment matters too, fall under the ambit of contractual matters as the relation between the employer and employee is nothing but a contractual relationship governed by the terms of the contract. Thus, there essentially exists a dichotomy when it comes to the application of the doctrine and this gulf of opinion can be succinctly put as; while the traditional view seeks to apply the doctrine only when a public body is concerned, the opposite view, while accepting the traditional one, goes beyond it and embraces private contractual matters too.
4.2.1. Legitimate Expectations in Employment Matters
Employment relations particularly between the employer and the employee are governed by the terms of the contract of employment which in the express and specific terms lays down the terms and conditions of employment. In one sense, it serves as a ‘law’ for the particular place of employment in so far it creates rights in favour of the employer and casts certain obligations on the employee. There might accrue instances where though the letter of the contract is followed, but not in the spirit it was intended and thus may cause prejudice to the interest of the employee. In such situations, it becomes pertinent for the Court, when presented with such disputes, to read into the written texts principles of equity so as to arrive at a just remedy. The doctrine of legitimate expectation, being itself a principle of equity, shall, in the same manner, be made applicable to matters of employment. However, the application of the doctrine in employment disputes arising out of contracts has had a chequered spanning various decision.
For instance, in Embling v. The Headmaster, St. Andrew’s College, it was held that the natural justice principle of legitimate expectation has no application in matters of employment as they would solely be governed by the terms of the contract and nothing more. However, an opposite view was taken by the South African court in Lunt v. University of Cape Town[59] where there was a disagreement on the view that contract matter excludes the application of the doctrine.[60] In another ruling by the South African court in Administrator, Transvaal and others v. Traub and others[61], the issue before the court was again on the applicability of doctrine even though the employer in question was in no way an instrumentality of the State and was thus a private party. The claim, in this case, was made by the employees of a private hospital who sought renewal of their employment and they based their claim on the fact that it was a tradition followed by the hospital administration wherein there will be an automatic renewal of the employment of the senior house officers, which the claimants were, after six months. Such renewal however did not accrue because they criticized certain of the hospital’s policies. Going by written law, they did not possess any right to seek automatic renewal of their appointment to the post, they didn’t even have a right in the first place to be appointed. The court nonetheless took a rather broad view and stated that even though the hospital is private in nature, much akin to a private company, but nevertheless the said tradition of automatic renewal of appointment every six-month created legitimate expectation in the minds of the claimant that they too would be meted the same treatment. Therefore, the court rightly and aptly broke the barriers of the application hitherto limiting the application of the doctrine in private affairs.[62]
4.2.2. Purely Contractual Relationships and the Application of the Doctrine
Purely contractual matters are those where both the parties specifically undertake to govern themselves by the terms of the contract as is entered between them. The Indian view on this regard has been dealt with in detail in the preceding sections. In A.C. Roy and Co.[63], the deciding judge put his observation in the following words, “It is difficult to comprehend as to how the doctrine of legitimate expectation can be invoked in contractual fields.”[64] Such difficulty which the learned judge apprehended in dealing with the case can be well resolved by looking at certain foreign authorities. For instance, in Mokgoko v. Acting Rector, Setlogelo Technikon[65], there were certain students of the Setlogelo Technikon who wanted their re-registration for the upcoming semester as was required by the rules of the school that each semester required re-registration. They were however denied such registration without ascribing them with the opportunity of being heard. Moreover, such denial of registration was also deviance from the long-standing tradition of the school which has hitherto re-registered the requesting students. The school before the court contended on the fact that their relationship with the students was contractual in nature and thus only the terms of the contract would govern the dispute and thus the student’s claim of ‘legitimate expectations’ should not be accepted. The Court, however, stated that the “doctrine of legitimate expectation was not confined to contracts of statutory or public-service employment”[66] and it extends to even those contracts which have private individuals as its parties.
Similarly in a case where the aggrieved party was a medical practitioner wanting re-registration as a post-graduate student and was subsequently denied such re-registration without affording him the opportunity to present his case, which he legitimately expected to be afforded, claimed relief from the court. Though the court acknowledged that the relation between the claimant and respondent was contractual in nature, it would not exclude the application of the doctrine of legitimate expectation.
On similar lines of reasonings, a rather recent instance is of a pronouncement delivered by the High Court of Seychelles.[67] The brief factual matrix here was that there existed a contractual relationship between the parties to the dispute. Both parties were private in nature with no linkages to the State or its instrumentalities. The contract between them was in nature of an agreement of lease with a clause that provided for renewal after a specific time. The owner-respondent, however, did not renew the lease which resulted in certain loss to the claimant who relied on the renewal clause and made certain ‘reliance’ investments in his business venture which he carried on the premises of the leased property. Though the renewal clause was purely an optional clause concretising only when both the parties’ consent to it, the court nonetheless held the owner liable for breach of contract on the ground that the renewal clause essentially created legitimate expectations in the mind of the claimant. The court emphasised that “now time has come to rethink, remould and extend its application to other branches of law such as contract, as it constantly evolves.” Therefore, the claimant was garnered with remedy even though he did not possess any right, in a strict sense, to claim so.
5. ANALYSIS, CONCLUDING REMARKS AND THE WAY AHEAD
The above pronouncements essentially run counter to the pronouncements of the Indian courts as have been discussed above. It is thus of prime importance to gauge the viability of each approach and weigh them in contrast to each other. The first approach, the narrow one, is not erroneous in its content but errs in its application. Catena of judgements discussed above primarily point to one single thing, that is, no matter the nature of the dispute, the doctrine would be applicable if the claim is being made from State and its instrumentalities.[68] It has thus become a pre-requisite before the Indian courts for having one’s claim satisfied that government or administrative authorities must be involved and the presence of private parties at both ends would vitiate the application of the doctrine.
On the other end of the spectrum stands the other point of view which has been largely developed by South African courts.[69] In this line of cases, while the courts have confirmed the British view of the doctrine and its contents, they have gone a step further, and probably in the right direction, in extending the application of the doctrine in private matters particularly those of employment and contractual matters.
Though none of the views is erroneous in its reasoning, it is the undue leaning of particularly the Indian courts, on the former view which needs to be revisited. It has nowhere been mentioned that natural justice applies only and only in the domain of public law, and that too particularly in administrative law. Rather natural justice has been defined as the sense of ‘right or wrong. [70]One cannot logically come to the conclusion that this sense of right and wrong can only be expected to be put into application by the courts when the government is involved. The doctrine of legitimate expectation itself being a component of natural justice must also enjoy such a wide ambit as natural justice itself deserves. Moreover, in elucidating the correctness of the two approaches, it is pertinent to look back at the evolution of the doctrine. When Lord Denning laid seeds of the doctrine in Schmidt[71], he did not anywhere intend that the claimants would be able to enjoy the fruits of this seed only when they claim from the State and its organs or instrumentalities. Even Lord Fraser in CCEU[72]when he wrote that expectations would arise from the express promise or past practices of public authority, it must not be given a strict meaning to mean that it would ‘only’ accrue on promises and past practices of public authority. His usage of public authority is only coincidental with the fact that the respondent was a state organ. Spirit, rather than words, must be given effect and the spirit is accountability, which would be made sure by holding oneself to his own spoken words and past consistent practices adopted by him giving the claimant an impression of their continuation.
Thus, the way ahead must surely be to observe the dictum of Allen Jean[73] and expand the application of the doctrine to even purely private contractual matters which would have severe consequences if left unattended merely because of want of actual rights to satiate the claims
[1] A. K. Kraipak v. Union of India, (1969) 2 SCC 262. [2] A.K. Srivastava, Doctrine of Legitimate Expectation, JTRIUP, 5 (1995). [3] Ambuj Mishra, Legitimate Expectations in India, 1, IJJSR, 7, (2019). [4] (1969) 2 WLR 337: (1969) 2 Ch 49 (CA). [5] Halsbury's Laws Of England, para 81 at pp. 151-152, (LexisNexis 2006). [6] (1958) AC 374: (1984) 3 WLR 1174 (HL). [7] Id. [8] (1983) 2 AC 629: (1983) 2 WLR 735 (PC). [9] Id. [10] Id. [11] R v. Secretary of State for Education and Employment, Ex Parte Begbie, (2000) 1 WLR 1115 (CA). [12] R v. Secretary of State for Home Department, Ex Parte Asif Mahmood Khan, (1984) 1 WLR 574 (QBD). [13] Central London Properly Trust Company v. High Trees House Ltd (1947) KB 130. [14] Re Civil Services Salaries E.C. Commission v. E.C. Council, [1973] E.C.R. 575. [15] Shaughnessy v. Pedreiro, 99 L Ed 868. [16] Supra note 10. [17] Breen v. Selective Service Local Board, 396 US 460 (1970). [18] (1978) 1 SCC 248. [19] Ashoka Smokeless Coal India Ltd v. Union of India, (2007) 2 SCC 640. [20] AIR 1989 SC 49. [21] S.C. and Weaker Section Welfare Association v. State of Karnataka (1991) 2 SCC 604. [22] [1993] 3 SCC 499. [23] Ibid, 540. [24] India Const. art. 14. [25] J.P. Bansal v. State of Rajasthan, 2003 AIR (SC) 1405. [26] (1993) 1 SCC 71 [27] (1998) 7 SCC 66. [28] (1994) 5 SCC 509. [29] Id. [30] Lührs v. Hauptzollamt Hamburg-Jonas, 1978 E.C.R. 169 [31] Jayanta Chakraborty, Doctrine of Legitimate Expectation - A Comparative Study of UK, USA & India, 5 IJLPP, 21 (2018). [32] Supra note 24. [33] Shaball v. State Compensation Ins. Auth., 799 P.2d 399 (1990) [34] Supra note 29. [35] Fedsure Life Assurance Ltd. and Others v. Greater Johannesburg Transitional Metropolitan Council and Others, 1999 (1) SA 374. [36] M.P. Jain & S.N. Jain, Principles Of Administrative Law, (LexisNexis 2017). [37] Union of India v. T.R. Varma, 1957 AIR 882: 1958 SCR 499. [38] Mark Elliot, Legitimate Expectations: Procedure, Substance, Policy and Proportionality, 65, Camb. L.J., (Jul., 2006), [39] T.R.S. Allan, The Rule of Law as Rule of Reason: Consent and Constitutionalism, 115 LQR 221, 233, (1999). [40] Furey v. Conception Bay Centre Roman Catholic School Board, (1993) 104 DLR (4th) 455. [41] (2002) 1 HKLRD 561. [42] Id. para 92. [43] G. Sreenivasan v. Principal, Regional Engineering College, AIR 2000 Ori 56. [44] (1997) 7 SCC 592. [45] Supra note 26. [46] Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223. [47] R. v. Secretary of State for the Home Department Ex Parte Hargreaves, (1997) 1 WLP 906. [48] Supra note 42. [49] R (Abdi & Nadarajah) v. Secretary of State for the Home Department, (2005) EWCA Civ. 1363 (68). [50] R. v. I.R.C. ex parte MFK Underwriting, (1990) 1 All E.R. 91, 111. [51] National Building Construction Corporation v. S. Raghunathan, [1994] 5 SCC 509. [52] The State of Bihar v. Dr. Sachindra Narayan & Ors. Civil Appeal No. 884 of 2019. [53] Supra note 21. [54] Industrial Fuel Company Pt. Ltd. v. Heavy Engineering Corporation 1993 (2) BLJR 1308 [55] A.C. Roy and Co. and Others v. Union of India AIR 1995 Cal 246. [56] D. Wren International Ltd. and Others v. Engineers India Ltd. and Others, AIR 1996 Cal 424. [57] Id. [58] Supra note 25. [59] Lunt v. University of Cape Town, 1989 (2) SA 438 (C). [60] Daniel Malan Pretorius, “Letting the Unruly Horse Gallop in the Field of Private Law: The Doctrine of Legitimate Expectation in Purely Contractual Relations”, 118 S. African L.J. 503 (2001). [61] Administrator, Transvaal and others v. Traub and others, (1989) 4 SA 731. [62] M. P. Olivier, Legitimate Expectation and the Protection of Employment, J.S.A.L. 483 (1991). [63] Supra note 54. [64] Id. para 44. [65] Mokgoko v. Acting Rector, Setlogelo Technikon, 1994 (4) SA 104 (BGD). [66] Id. para 115E. [67] Allen Jean and Anr v. Wellington Felix and Anr, [2013] SCSC 63; [2013] SLR 205. [68] Navjyoti Cooperative Housing Society v. Union of India, (1992) 4 SCC 477; Global Energy Ltd. v. Central Electricity Regulatory Commission, (2009) 15 SCC 570. [69] Mokgoko v. Acting Rector, Setlogelo Technikon, 1994 (4) SA 104 (BGD).; Administrator, Transvaal and Ors. v. Traub and Ors, [1989] 4 SA 731; Lunt v. University of Cape Town, 1989 (2) SA 438 (C). [70] Dharampal Satyapal Ltd. v. CCE, (2015) 8 SCC 519. [71] Supra note 4. [72] Supra note 6. [73] Supra note 66.
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