Doctrine of legitimate expectation is no doubt is a new doctrine in administrative law. Certain critical and vulnerable issues are involved in the case relating to legitimate expectation. Every quarter of authority with in the meaning of parties involved require to deal the matter carefully. Applicant himself, court and authority concern have to be conscious about the application of the doctrine.
Consideration needs to prove by the Applicant:
Legitimate expectation is an equitable doctrine. Under this doctrine the aggrieved individual may get a scope of being heard after setting aside the impugned administrative decisions. It is so run to protect the interest of individual and let their desire not to be demolished in an arbitrary manner. It affords the applicant standing to apply for judicial review of an action administrative in nature. The core requirement which the applicant obliged to prove is the very foundation of his claims. Thus the applicant requires showing that he has locus standi to make a claim. HCD of Bangladesh Supreme Court held that – 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. Again he required to prove that the decision taken by the authority is arbitrary, unreasonable not taken in public interest. As it is mentioned earlier devoid of legitimate expectation, necessarily involves with violation of natural justice, the ultimate responsibility owes by the applicant to prove violation of legitimate expectation. He can do it either from the face of the recode or from the other reliable evidence. Even he is entitled to depend on evidences procure at a later period of committing the occurrence.
Responsibility owes by the Authority:
A case of legitimate expectation will arise when a body by representation or past practice aroused expectation which it has power to fulfill. But this doctrine does not give any scope to claim relief directly from the authorities. This comparatively new doctrine insists a responsibility to hear upon the administrative authority in few cases where otherwise the affected person has no right to be heard. However if it is seen that the applicant satisfies the court on the face of the record of the claim or prima-facie the basis of his claim according to legitimate expectation, then the authority concern obliged to justify the action taken against him. Where the application of doctrine of legitimate expectation is traceable, certain obligations inherently owes to the concern authority. As to the demands of legitimate expectation the authority must hear the party going apprehended to be affected or the affected person should be given opportunity to make a representation. Besides these the authority is obliged for consulting with the persons to be affected, publish a change of policy if there any at any subsequent period, or giving reasons therein in support of their administrative decisions. In addition it is needed to be bom in the mind of the authority that an earlier order made by him may give rise to a legitimate expectation that the procedure created by that order will continue and that hence every application required to be considered in pronouncing the final order. It was held in Navjyoti Co-op Group Housing Society v. Union of India that the doctrine of legitimate expectation imposes in essence a duty on the public authorities to act fairly by taking into consideration all the relevant factors bearing a nexus to such legitimate expectation. The concerned authority cannot act arbitrarily so as to defeat the expectation, unless demanded by over-riding reasons of public policy.
Courts action in applying the Doctrine:
The last resort for the applicant in any case or suit is the Court of law. The applicant in the form of judicial review usually sought his rights protection, particularly by means of Writ The court when deciding a case which involves the legitimate expectation of any individual must follow the care and caution. It is the prime responsibility of the court to consider a prayer with an end to granting relief, where legitimate expectation founds. But there is no room to understand that the court would take decision overriding the public interests and where emergency situation otherwise requires. Even on the basis of overriding public interest the court may restore the authority’s decision in this regard. In fact the court’s duty is to maintain die balance and justice in the society. The development and maintenance of fair procedure is the first concern for the court. Regarding the courts duty HCD of the supreme court of Bangladesh has held that-
“If the situation so demands, the court shall certainly strike down such orders in exercise of its powers of judicial review of executive actions. In case of their unreasonableness or inertness or even lashes on their part for which some benefit is lost causing prejudice to the people at large or even to an individual, the court may also direct the concerned authorities to exercise their functions fairly, reasonably and in accordance with law.”
It is also observed in India that the court or tribunal, in the absence of specific rule entitling the applicant his claim, cannot interfere in the decision or discretion of the authority if no arbitrariness or mala fides are found there. Indian court held that “Even natural justice cannot be invoked through doctrine of legitimate expectation if the candidates are not heard before canceling such select list for bona fide reasons.” Nonetheless the due concern for the court is to protect the individual rights with reference to natural justice.
In India it is seen that the court has applied the doctrine of legitimate expectation even to protect the interest and rights of judges of the court (When the judges acts as individual and as a citizen of the nations.) I strongly believe that a recent case decision by the Appellate Division of Bangladesh will be worth to mention here.
However, in a given case whether there are such facts and circumstances, giving rise to legitimate expectation, it would primarily be a question of fact. If those tests are satisfied and if the court is satisfied that a case of legitimate expectation is made out then the next question would be whether a failure to give an opportunity of hearing before a decision affecting such legitimate expectation is taken has resulted in failure of justice and whether on that ground the decision should be quashed. If that be so what would be the relief is again a matter which depends on several factors. The courts jurisdiction is very limited to interfere and much less in granting any relief is a claim based purely on the ground of legitimate expectation.
Lacuna of the Doctrine
Doctrine of legitimate expectation among other doctrines is most crucial one. It is so needed for the protection of individual from the arbitrary deny of his rights and entitlements. During the recent development of administrative law, it takes a vital portion public law. Nonetheless this doctrine is free from loopholes. Due to its certain limitations, it is not substantially able to render service to the public by giving protection to their legal rights and enjoyment. So far my knowledge and observing approach, the following lacuna’s are prominent to mention here.
The first limitation is that the doctrine legitimate expectation is absolutely a procedural matter. In case of substantive action this doctrine is hardly visible. The contending plea not recognizing the substantive action within its ambit is that, if substantive protection is to be accorded to legitimate expectations it would create encumbrances in administrative decision which is taken on merits. But it is not permissible in law.
The second limitation is that it has no application against statute. It means all the law which are made by legislature shall be in traceable by the doctrine of legitimate expectation. It is one of the main lacuna of this doctrine it has no authority to preclude the legislation. Even the supreme court of India held that legislation cannot be invalidated on the basis that it offends the legitimate expectation of the persons affected thereby.
Public policy, morality or security of the state is another plea against whom no legal expectation shall prevail. If one’s allegation is volatile to security of the state or public policy, the doctrine of legitimate expectation will not apply. The security of the state is enough qualified to override the expectation or right of the individual.
For the proper application of this doctrine substantial resort needs to be based on formality. Mere irregularity in the proceeding can restrict the parties from their entitlement Highest importance has been given on the compliance of conditions founded for the consideration of this doctrine.
Though it is true that the public importance and security should get priority, individual rights ought not to be undermining in any way. In many cases the applicant deprived of his personal rights in the name of public interest.
It is among other, one of lacuna of this doctrine that in case of contractual relation there is no application of the doctrine legitimate expectation. A mere wish, will or hope even a desire solely is not sufficient enough to constitute the basis of legitimate expectation.
In Bangladesh perspective, the Constitution of Bangladesh only contains some rules of natural justice in a general way. The words legitimate expectation has no place in the constitution or any other statues of Bangladesh. There is no specific Act containing the minimum procedure requiring administrative authorities to follow in times of exercising decision making power.