Legitimate expectation in Bangladeshi law

Wonford Road in Exeter, UK. Near this place along the same road is the Royal Devon and Exeter NHS Foundation Trust's Mardon Neuro-Rehabilitation Centre. When it was known as Mardon House, its threatened closure led to a 1999 judgment, ex parte Coughlan, in which the Court of Appeal of England and Wales said a disabled resident's legitimate expectation that she would have a "home for life" there had been breached by a health authority then managing the facility.

Some of the pioneering cases of the doctrine in British law are Schmidt v. Secretary of State for Home Affairs (1968), O'Reilly v. Mackman (1983), Council of Civil Service Unions v. Minister for the Civil Service (the GCHQ case, 1983).[2] and R. v. North and East Devon Health Authority, ex parte Coughlan (1999).[3]

In a 1983 case, Attorney-General of Hong Kong v. Ng Yuen Shiu, the Privy Council held it was a breach of a procedural legitimate expectation for the Director of Immigration not to fulfil an undertaking to give an illegal immigrant a chance to make representations before deciding to deport him.

Sharping Matshajibi Samabaya Samity Ltd. v. Bangladesh and others (1987) 42 was the first case where the court in essence referred to the doctrine, but the phrase "legitimate expectation" did not appear anywhere in the judgment. Rather the court relied on common phrases like "arbitrariness" or "natural justice". This case involved a breach of contractual obligation for a lease of fishery between the government and a private party. Later, the lease was cancelled without giving any reasons for such cancellation. The Court in this case viewed government's obligation under the contract not as in its trading capacity "rather in its capacity as sovereign". In spirit what the court asserted in this case was somehow in essence the early version of doctrine of legitimate expectation where the English courts tended to ascribe it solely to the rules of natural justice, particularly the requirement to hear the other side or audi alteram partem.[1]

The doctrine of legitimate expectation was first baldly referred by the supreme judiciary in this country in North South Property Ltd. v. Ministry of Land and another (2000). Here, the respondent (Ministry of Land) took up a project for construction of 16000 flats for shelter less and low income group slum dwellers of the Dhaka city. The Government planned to do it on 47.90 acres of Government land at Bhasantek through private financing of the developers. The respondents had discussion with different developers including the petitioner. The petitioner was assured of being engaged to execute the said project and was asked to submit a detailed lay out plan in this regard. The petitioner did all those things as the respondent instructed. Subsequently, the respondents published a notice inviting bids for executing the said project. Only two companies including the petitioner participated in the said bid and it was unanimously resolved in the concerned committee that the technical offer of the petitioner was responsive. But the respondents decided not to accept petitioner"s lone bid as the participants were only two. They decided to call a fresh bid to make the process competitive and transparent. The petitioner challenged the decision of the authority on the basis of his legitimate expectation that arose on the assurance given by the authority to employ him for the project and his spending an amount of taka twenty-five lac to develop and finalise the plans and technical support on the basis of such assurance. The facts of the case in itself can be a good example in explaining the criteria of "clear, unequivocal and unambiguous" statement or promise by a public authority. But the court did not go to the depth of the issues of "assurance" or "understanding" as claimed by the petitioner rather termed the claim of legitimate expectation as "a disputed question".[1]

The first successful reference to the doctrine is found in Bangladesh Soya-Protein Project Ltd. v. Secretary, Ministry of Ministry of Disaster Management and Relief (2001). In this case, the government initiated a "School Feeding Programme" under a policy aimed at eradicating malnutrition of the under-nourished child and entered into a contract with the petitioner for the supply of Soya-protein biscuits to schools for a fixed period. The petitioner took all the accomplishments to perform the contract including to set up a new industry incurring huge expenditure within the full knowledge and cooperation of the government, just in order to produce the required quantity of Soya-products to make their school feeding programme a success. The continued success of this programme and the support of the government caused the petitioner reasonably to expect that it would be continued till the fulfillment of the purpose of the project that is to eradicate malnutrition of under-nourished children. But on the expiry of the contract period, the government discontinued the programme without showing any reason. 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. Though the government contended that it was not bound to renew the contract and the last contract not being renewed it simply expired by efflux of time without giving any right of action.[1]

In Bangladesh Biman Corporation v. Rabia Bashri Irene and others (2003), writ petitions were filed challenging validity of some parts of the individual contract of employment as violative of legitimate expectation of the employees of being absorbed as permanent staff after completion of their 5 years tenure and their expectation was reasonable in view of the practice existing at the time of their employment. They were not absorbed as permanent employee rather reappointed under a fresh contract depriving them of some benefits including of being absorbed as permanent staff. The state contended that the expectation that has arisen between the petitioners and the corporation is of a relationship pursuant to a contract and beyond contract the petitioners are not entitled to anything as regard their service. Rejecting the contention of the state the supreme judiciary held that in the context of employment by statutory corporations, the relationship of the corporation with its employees is not that of master and servant and all contracts with statutory corporation are subject to challenge in the writ jurisdiction. The corporation by its past practice has created the legitimate expectation in its employees that after completion of the prescribed period they would be absorbed as permanent staff. By not absorbing them as permanent and appointing them under a new contract, the corporation has acted in a discriminatory manner.[1]

Dome of the Old High Court in Dhaka. When the government appointed ten judges, without consulting the Chief Justice as was the practice for thirty years, the court ruled that it was a violation of legitimate expectation

In Md. Shamsul Huda and others v. Bangladesh and others (2009), ten additional judges were not appointed as judges in the High Court Division ignoring the recommendation of Chief Justice and without communicating any reasons to the Chief Justice and thereby, violated the expectation of the petitioners which was based on the established practice being followed over thirty years.[1]

Justice Amirul Kabir Chowdhury held that "legitimate expectation to be enforceable shall have some legal basis. Mere wishful expectation without legal basis is not sustainable in the eye of law. When the action of the government is taken fairly showing reasons, it cannot be struck down...."[1]

In Asaf Khan and Others v. The Court of Settlement, Dhaka and Others (23 BLD 24) Justice M.M. Ruhul Amin provided a definition that "legitimate expectation is a concept of administrative law, which means that an administrative authority cannot abuse its discretion by legitimate expectation by disregarding undertaking or statement of its intent".[4]

The District Magistrate did not use the term 'legitimate expectation'. But in deciding in favor of the applicant that he should have been given a hearing, what the court wanted to assert that in the case of first grant of license and renewal of license the principles of natural justice is attracted in a limited way in consideration of legitimate expectation.[4]

The apex court made the following commented 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 he had in the past been permitted by the decision maker to enjoy and which he can legitimately expect to be permitted to continue until some rational grounds for withdrawing it are communicated to him and he is given an opportunity to defend his cause".[1]

A descriptive idea of this doctrine is restated in Golam Mustafa v. Bangladesh, where the Court observed that judicial review may be allowed on the plea of frustration of legitimate expectation in the following situations.

• I. If there is a promise by the authority expressed either by their representations or conducts.
• II. The decision of the authority was arbitrary or unreasonable within the Wednesbury principle.
• III. There was a failure on the part of the concerned authority to act fairly in taking the decision.
• IV. The expectation to be crystallized into a legitimate one, it must be based on clear facts and circumstances leading to a definite expectation and not a mere anticipation or a wish or hope and also must be reasonable in the circumstances.
• V. Judicial review may allow such a legitimate expectation and quash the impugned decision even in the absence of a strict legal right unless there is an overriding public interest to defeat such an expectation.[1]