The phrase ‘legitimate expectation’ is judicially approved by our Courts in a number of decisions. Legitimate expectation gives the petitioners sufficient locus standi for judicial review. There are lots of cases in our country where the doctrine of legitimate expectation is discussed and well established.
Relevant Case reference:
The Chairman. Bangladesh Textile Mills Corporation v Nasir Ahmed Chowdhurv and Others
The short fact of the case is-The National Cotton Mills Ltd. was incorporated in 1938 as public Ltd. Company under the Companies Act, 1913 and the Registered Office was at Chittagong. The Company established National Cotton Milles Ltd. at Halishahar, Chittagong. The majority shareholders were of erstwhile East Pakistan, now Bangladesh and few were Indians and Burmese. In 1965 upon promulgation of the Defense of the then Pakistan Rule, the Company and its assets were declared enemy property and the same action of the government was challenged in writ jurisdiction and thereupon of the government withdraw the notification declaring the property enemy property. The local shareholders filed Title Suit No.26 of 1966 in the court of Munsif (now Assistant Judge) Chittagong seeking declaration that the National Cotton Milles Ltd., herein after referred to in short as the Company was a Pakistani Company and the further relief to place the name of the Company in the Register of the Pakistani Companies. The said suit was decreed on 3 May, 1966 and the said decree was maintained in appeal as well as in action in terms of law. Laws of the country need to be enacted after taking into consideration of Article 27 and 31 of constitution of Bangladesh, where Article 27 prohibits any sort of discrimination and article 31 introduces the aspect of due process in action to prohibits arbitrary proceeding and protect the interest of the individual. Thus legitimate expectation might be respected through maintaining Rule of law.
However supreme priority should be given on the fact that a person ought not to be deprived of his personal liberty or other substantial interest without giving an opportunity of fair hearing before an independent court. The prime concern of rule of law is like that the power is to be exercised in a manner which is not unreasonable and detrimental to the legal interest of individual. Because it may frustrates the legitimate expectation of a person. The case of Bangladesh vs Idrisur Rahman is mostly related here. It was held that-
“if a right or privilege of a sitting judge sought to be denied citing the provision of Article 111 of the constitution that will not only be contrary to rule of law but would also be contrary to consultation being in violation of his fundamental rights guaranteed under Articles 27 and 31 of the constitution.
Further this would also amount to a denial of his right of access to justice which is an inviolable right secured and ensured in the constitution and equally founded in the doctrine of American due process of law.”
However in the concluding moment I would prefer to refer a comment by Hilaire Barnett to satisfy the meaning of Rule of law taking into accord to the legitimate expectation.
The rule of law – in its many guises- represents a challenge to state authority and power, demanding that powers both be granted legitimately and that their exercise is according to law. According to law means both according to the legal rules and something over and above purely legality and imputes concepts of legitimacy and constitutionality. In its turn, legitimacy implies rightness or morality of law revision filed before the HCD. The shareholders, till nationalization of the Mill in the year 1972 managed the Company. After nationalization under P.O No.27 of 1972, the enterprises were placed under the management of Bangladesh Textile Mills Corporation. As per policy decision of the Government to denationalize industrial enterprises for the purpose of increasing private entrepreneurship the Ministry of Industry and Commerce in pursuant to the said policy decision published notification in the Gazette of 27 September, 1982 notifying that 27 Cotton and textile Enterprise would be denationalized and the management would be given to the Bangladeshi national of fulfillment of the conditions specifically mentioned in the Gazette notification.
Md. Ruhul Amin, J observed that, For a legitimate Expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision maker to enjoy which he can legitimately expect to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or
(ii) he has received some assurance from the decision maker that it will not be withdrawn without giving him first an opportunity of advancing reasons for contending that it should not be withdrawn. The procedural part of it relates to the representation that a hearing or other appropriate procedure will be afforded the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. The interest is regard to which a legitimate expectation could be had must be one which was protectable. An expectation could be based on an express promise or representation or by the established past action of settled conduct. The representation must be clear and un-ambiguous. It could be a representation to the individual or generally to a class of person.
Bangladesh Sova-Protein Project Ltd .v. Secretary. Ministry of MDMR
The short fact of the case is- The Government initiated ‘school feeding Programme’ and enters into contract with the petitioner for supply of soya-protein biscuits to school for a fixed period. On the expiry of the contract period, the Government discontinued the programme.
The High Court Division held that such discontinuance of the programme, violating its own policy, was in gross violation of the legitimate expectation not only of the petitioner but also of the millions of under-nourished children warranting interference of the court and directed the government to implement its policy decision.
It is submitted that the decision is open to exception. The judgment does not show that there was any promise in the shape of statement of policy to continue the programme there could not be any legitimate expectation of anybody of the continuity of the programme. Even if there programme would have been continued, the petitioner could not have any legitimate expectation of having a renewed or fresh contract for the supply of soya-protein biscuits.
Rabiab Bashri Irene and another v. Bangladesh Biman Corporation, respresented by MD. & another
The short fact of the case is- all the petitioners are employees of the Bangladesh Biman Corporation their designation being Flight Stewardess. In the aforementioned two writ petitions there are 18 petitioners, who all joined Bangladesh Biman Corporation on various dates between the 23rd April, 1993 and 2nd August, 1993. The contract of employment for each of the petitioners is exactly in the same from and terms. On 14th October, 1991 Biman advertised in national papers inviting applications for post of Flights Stewards/stewardesses and the petitioners applied. The petitioners having qualified in written and viva voce examination and received written individual letter of offer, all dated 6th January, 1993 which seats out the terms and conditions of employment. Each of the petitioners accepts the terms and conditions as contained therein. Thereafter Bangladesh Biman Corporation issued individual letter of appointment dated 27th April, 1993 to all of them. And they from the part of a batch of appointees knew as Batch 28. After that they were required to sign individual contract of employment which were dated 28th April, 1993. Terms and condition of the letter of appointment and the contract are similar. It has been expressly stated in the letter of offer, letter of appointment, and in the contract that the employment shall be for a period of five years, renewable at the discretion of Biman for successive period of three years until the petitioners attains he age of 35 years. All the petitioners joined their employment submitted Indemnity bond of taka 50,000 each in respect of cost for training and after successful completion of training they were all posted along with Biman’s permanent staff. The petitioners alleged that on successful completion of 3 years as required they were not absorbed as permanent employees. Admittedly they completed 5 years period required under there individual contract to the satisfaction of Biman.
It is the case of the petitioners that notwithstanding the satisfactory completion of the period of service required under thee Board Resolution and contrary to the Boards previous practice and petitioner’s legitimate expectation; they were not absorbed as permanent employees.
It was held that the Resolution of the 17th Board Meeting of the Biman is a statement that can be said to be statement made by the employer that the petitioner would in due course be absorbed. In the aforesaid case it has been also observed that it is not that expectation has got to be based on some contract, it may be based on past practice or any statement whether that forms part of the contract or not. So the petitioners expectations of being absorbed in the service after satisfactory completion of five years service cannot but be said to be their legitimate expectation and in all fairness they should be absorbed in their service.
North South Property Development Ltd. v. Ministry of Land. Secretary, and another
The short fact of the case is- The respondent No.l decided to undertake a project to develop 47.90 acres of land in Bhasantek area under Dhaka in Cantonment PS for rehabilitation and housing of slum dwellers low income people. Petitioners had discussion near the end of September, and orally directed by the State Minister of Land to submit a plant that how hey would be implement the project the self financing. Petitioner’s was given the understanding that if the plan is approved petitioner would be given the responsibility to implement the project. Therein after petitioner field an application to the prime Minister of land setting out the basic layout of project proposal on 30-9-97. Thereafter on 14-10-97 a meeting was geld on ministry of land. Thereafter petitioner submitted an application setting out details of the project proposal and lay out plan on 8.11.1997. Thereafter, petitioner had discussion with an American Investment Company about the project and representative of the said company visited Bangladesh and agreed to invest in the said project. The project got approval of the Executive Committee of the National Economic Council. Though respondents were well aware that the petitioner developed the detail and feasible concept they invited open tender bids from interested private organizations deliberately ignoring the confidentiality of petitioner’s project proposal by publishing notice in the newspapers. Though the petitioners were surprised by the said move of the government if corrected a bid document on payment and deposit of the requisite amounts. On 23.08.98 petitioner received a letter from respondent no.2. Further case of the petitioners is that respondents having giving assurance to the petitioners and the petitioners spend time, skill and money for the project on such assurance it created a legitimate expectation of getting the work. But the respondents acted contrary to petitioner’s legitimate expectation and thus acted illegally and without lawful authority. Respondents acted in a malafide manner to the detriment of the petitioner by inviting bid for the second time ignoring petitioner’s valid offer after including the petitioners to disclose in details its lay out plans and technological know-how and in adopting and publishing the entire concept as their own. In the above premises notice to hold a second bid is arbitrary, malafide and without lawful authority fe¬lt was held that, a case of legitimate expectation would arise when a body of representation or by past practice aroused excitation which it would be within the powers to fulfill. In a given case whether there are such fact and circumstances giving rise to legitimate expectation, it would primarily a question of fact.
Kazi Ebadul Haque J said that, we have already seen that the petitioner that there respondents gave it an assurance to award the contract in its flavor is a dispute of question. So we do not find any basis for the petitioner’s legitimate expectation .Rather petitioner’s participation in the bid negatives its claim of legitimate expectation or at least petitioner itself waived its claim. Even if it is conceded for the sake of argument that petitioner had legitimate expectation to get the contract the decision of the respondents not to accept petitioner’s loan bid and to invite bids for he second time to attract more bids appears be in public interest to make the bids competitive and transparent. Even the notice dated 5-7-98 inviting bids and impugned notice dated 9-10-98 inviting bids for second times show that the authority reserved the right to accept or reject any bid without assigning any reason. Thus non acceptance of petitioner’s loan bid cannot be terms as arbitrary, unreasonableness or malafide. On the other hand, we fiend that Technical Committee having found the technical offer of the petitioner responsive recommended to consider petitioner’s financial offer if no other better offer was found after inviting bids for the second time. Thus we find nothing arbitrary or unreasonable in the conduct of the respondents not to speak of any malafide.
Grihavan Limited v. Government of Bangladesh
It was held that, where one party by words or conduct has made a clear or definite promise which he knows will be acted upon by the promisee and the latter in fact has acted upon it, then the promise is binding upon its maker who will not be entitled to back upon it. This principle of promissory estoppels is available by way of defence and also as a cause of action. This principle is applicable against the government and a statutory body as well as against a private individual.
Bangladesh. represented by the Secretary, ministry of Food. Bangladesh Secretarial.
Dhaka and others v. Md. Abul Hossain
The short fact leading to this petition is that the writ petitioner Md. Abul Hossain has a rice mill named Abul Hosain Husking Mill at Shetabganj in the district of Dinajpur. In 1980-81 the Writ petitioner entered into an agreement with the government for cursing paddy supply by the government and according to the terms of the agreement he has required to supply 38 seers 10 chataks price for every 50 seers of paddy supplied by the government and the government would pay the Writ petitioner taka 3.60 for the year 1980-81 and taka 4.60 for the year 1981-82per Maund of paddy crushed. In the aforesaid two years the govt, supplied inferior quality of paddy as result of which the petitioner failed to supply the required quantity of rice as stipulated in the agreement and also due to electricity failure some paddy could not be crushed which were damaged as a result no
rice could be supplied. Stating the above fact and circumstances the petitioner and the other millers prayed the govt, for exemption for supping deficit quantity of rice but it was not considered. Then the petitioner prosecuted in Summary Martial Law and was convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of taka 15, 50,000/. On representation the govt, stayed the prosecution and suspends the sentence of the petitioner who had paid 80% or more of the govt, dues and accordingly the Court released the petitioner but subsequently the President Secretariat Order was withdrawn and petitioner was again sent to jail. The petitioner then put a representation the President of Bangladesh on consideration of the same suspended sentence and also there was an order by the President that the owners of the mill should be given an opportunity to pay arrears due to the govt, for which they should be supply paddy for crushing and 25% of the crushing charge would be deducted. And adjust against the due sentenced would be commuted. The petitioner for cruising paddy of the of the govt. After realization of the entire dues the prosecution could be withdrawn and year 1991-92 entered into another agreement and was to be supplied the paddy but the Upazilla Controller of food refused to allot paddy to the petitioner in view of the direction from the govt, and there was also an direction for taking action against the mill owners including the petitioner. On getting the said order the petitioner moved to the HCD and obtained the present rule which was contested by the respondents.
It was held that, the HCD made the rule absolute holding that once privilege is given to a person on condition of doing any act and if such condition is fulfilled and continues to be fulfilled such privilege or right can not to be taken away or cancelled without giving him a chance of being heard. In the instance case no illegality has been committed by the High court division in making the rule absolute.
Dr. Abeda Beeum and others v. Public Service Commission and others
The short fact of the case is- the petitioners, namely, Dr. Abeda Begum, Dr. Md Borhanuddin Howlader, Md Fazizur Rahman Khan, Mohammed Rizwan Hashmi, Khondoker Shaheen Hossain, Farid Ahmed, Md. Jamaluddin, Md Ziaur Rahman, Muhammad Monirul Isalam Khan, Helana Akhter and Mahfuz Jesmin field the Writ petition challenging the impugned Notice dated 25-6-07 in excluding the names of the 292 examinees including the petitioners in 23rd BCS ( Special) Examination, 2000 qualified in all previous written examinations for appearance in the viva voce examination without giving any valid reason whatsoever. The petitioners are bonafied citizen of Bangladesh and examinees in the 23rd BCS (Special) Examination, 2000 have successfully passed preliminary objective test held on 23-3-2001, written examination held on 16-6-2003 and thus they are all qualified and entitle to appear along with other successful examinees, in the viva voce examination which having commenced on 6-7- 2003 and continue up to 8-7-2003. There are 292 examinees, including the petitioners from different part of the country, who are aggrieved by the selfsame arbitrary and malafied action of the respondents and thus the petitioner filed the writ petition for themselves and on behalf of other aggrieved and seriously affected examinees as the next friends in representative capacity.
It was held that, the doctrine of legitimate expectation can be invoked if the impudent decision affected a person by depriving of some benefit or advantage which had been in the past permitted by the decision maker.
Considering the Government policy decision for welfare and benefit of the children of freedom fighters to fill up 709 vacant posts of different caders in the service of the Republic as stated above, the respondent PSC acted arbitrary in excluding the registration numbers of the petitioners from the impugned order and there by respondent PSC has committed gross violation of the legitimate expectation not only of the petitioners alone but also the nation who owes a great debt to the freedom fighters and shahid freedom fighters for the supreme sacrifice made by them in the War of Liberation and, as such , the aforesaid vacations of the legitimate expectation warrants interference by the Hon’ble Court for judicial review of the impugned order.
Therefore, after discussion the number of decisions of the cases it clearly indicates that the doctrine of legitimate expectation is judicially approved by our Courts and Judges and gets assimilated in the rule of law and operates of our Legal System in this manner and this extent.
The doctrine of legitimate expectation has an important place in the development of law of judicial review in Bangladesh. It is enough merely to note that a legitimate expectation can provide a sufficient interest to enable one who cannot point to the existence of substantive right to obtain the leave of the Court to apply for judicial review.
When and how an expectation becomes legitimate, should be construed carefully. The means of test must be standard one. Justice Amirul Kabir Chowdhury Formerly chairman of national Human Rights Council let a test in Md. Hafizul Islam v. Government of Bangladesh and others in the following way-
“The concept of legitimate expectation is to some extent uncommon in our jurisprudence. The word ‘legitimate’ connotes lawfully begotten. An expectation to become legitimate therefore should not be sworn of lawful begetting. The concept of legitimate expectation cannot be given such wide interpretation so as to allow any wishful hope without lawful root.”
A mere fanciful expectation can not be taken to be a reasonable expectation. Even expectation based on contract or relationship would not be maintainable if it is not clear founded. In Rabia Bashri Irene v Bangladesh Biman it is seen that the expectation of the petitioner was reasonable in all respect. It was not mere speculative. The court held that “the petitioner’s expectations of being absorbed in the service after satisfactory completion of five years service can not but be said to be their legitimate expectation.