025-SLLR-SLLR-2001-V-3-WICKREMARATNE-v.-JAYARATNE-AND-OTHER.pdf
WICKREMRATNE
v.JAYARATNE AND OTHER
COURT OF APPEALGUNAWARDANE. J. (P/CA)
C.A. 120/98APRIL 28th. 2001
State Land – Acquisition under Land Acquisition Act 28 of 1964 – Is itlawful – should the procedure outlined In State Lands (Recovery) ofPossession Act 7 of 1979 be Invoked ? What is legitimate expectation -Opportunity not given to make representations – What is a land ?
Lease of corpus was originally granted to the Petitioner's father. After hisdeath the Provincial Land Commissioner recommended that a portion ofthe corpus be leased to the Petitioner. The Petitioner agreed to this. TheDistrict Secretary requested the Petitioner to handover possession of theentire land whilst retaining the area agreed to be retained by him. However,thereafter the District Secretary decided to take possession of the entireland on behalf of the State, without affording an opportunity to the Petitionerto make representations.
It was contended that (1) the State ought to have moved under the StateLands (Recovery) of Possession Act and not under the Land AcquisitionAct as the land was State land (2) that the Petitioner had a legitimateexpectation that he would be given a lease of the land (portion).
Held :
'Land' includes any interest in or any benefit which is to arise out ofany land and any leasehold or other interest held by any person inany State land, and also things attached to the earth or permanentlyfastened to anything attached to the earth.
The Petitioner is working a quarry and there are buildings on the land.
In the light of the definition of the term 'land' as used in the LandAcquisition Act because the term 'land' means not only the land itselfbut also any interest in the land or any other structure erected on theland the proposition that the Land Acquisition Act could only be usedto acquire private lands and not State Lands, is untenable.
It is the fact that the legitimate expectation had arisen against theState itself (on the basis the State must be held to have acted through
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its officers, who are agents of the State) that makes it (expectation)enforceable against the State. If it had been otherwise, that is if thelegitimate expectation had not arisen directly as against Stale itself -then the State could still have proceeded to acquire the land -undeterred by the fact that the legitimate expectation had arisen asagainst the officers only – because it is the State that is seeking toacquire the lands, but the State is bound, because the officials had ingiving assurances, acted as agents of the State and not in their privatecapacity.
The State itself has to honour and cannot renege on the promise heldout by its servants to the Petitioner.
Per Gunawardena, J. (P/CA)
"The doctrine of legitimate expectation is not limited to cases involvinga legitimate expectation of a hearing before some right or expectationwas affected but is also extended to situations even where no right tobe heard was available or existed but fairness required a public bodyor officials to act in compliance with its public undertakings andassurances."
"Public Officers or the State although are at liberty to alter the Policy,yet by no means are free to ignore legitimate expectations engenderedby their actions and/or conduct."
The undertaking may or may not be binding on the State, mostprobably not, but the sacred principle is that No authority, not eventhe State, in the generality or circumstances, could resile from theundertaking that one has given without first giving the personadversely affected by the revocation or withdrawal of the promise anopportunity to make representation.
APPLICATION for a Writ of Certiorari/Mandamus.
Cases referred to :
In Re L(AC) an infant – 1971 3 All ER 743.
Robertson u. Minister of Pensions – 1949 1 KB 227.
Wells v. Minister of Housing and Local government – 1967 1 WLR1000.
Innes v. Onslow Fane – 1978 1 WLR 1520.
Schmidt v. Secretary of State – (1969) 2 CA 149.
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Wtckremratne v. Jayaratne and other
(U. de Z. Gunawrdana, J. (P/CA)
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Liverpool Taxi Fleet Operators case – 1972 2 QB 299.
Attorney General ojHong Kong v. Ng Yuen Shiu – 1983 2 AC 629.
R v. Devon County Council ex parte Baker and another – 19951AU ER 73
Rohan Sahabandu for Petitioner.
Ms Farzana Jameel, S. S. C. for Respondents.
Cur. adv. vult.
August 07, 2001.
U. DE Z. GUNAWARDANA, J. (P/CA)This is an application seeking to quash by an order ofcertiorari notices marked P10 and PI 1 that had been servedon the petitioner in pursuance of sections 2 and 38(a),respectively, of the Land Acquisition Act No. 28 of 1964 (asamended) and also a letter (P12) dated 28. 01. 1998 informingor notifying the petitioner that the 3rd respondent (DivisionalSecretary) will take over possession of the relevant land calledGalwala watta morefully described in the notice (P2) issuedunder section 2 of the Land Acquisition Act No. 28 of 1964 (asamended). Where any land is acquired, the minister isempowered under section 38A of the said Act for immediatepossession to be taken over on the ground of urgency.
The petitioner by the aforesaid application had also soughtan order of mandamus to compel the respondents (to use thevery words in the application) "to hand over the agreement torelease A. O. R2 P21 – a part of the land to this petitioner" -which is somewhat vague as to the nature of relief sought.
Two matters of nicety had been urged on behalf of thepetitioner and they are:
(i) that the procedure adopted by the respondents to acquirethe land in question is wrong in that they ought to havemoved or taken steps under the State Lands (Recovery ofPossession) Act No. 07 of 1979 as amended and not underthe Land Acquisition Act;
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(ii) that the petitioner must be held to have had a "legitimate
expectation" that he would be given a lease of A. O. R2 P21
out of the entire extent of the land.
To deal with the above – mentioned two points in order: thelearned counsel for the petitioner, in his fluid and somewhatelusive submissions, seems to say that the respondents should,in order to get vacant possession and eject the petitioner fromthe land in question, have invoked the procedure laid down inthe State Lands (Recovery of Possession) Act No. 7 of 1979. asamended, which submission implies by necessary implicationthat the petitioner is a trespasser or is in "unauthorizedpossession or occupation" of the land in question. But thatargument overlooks the definition of the term "land" as set outin the interpretation section, appended to the Land AcquisitionAct as amended, wherein the term "land" (to reproduce onlythe relevant excerpt of the definition) is defined thus: "land"includes any interest in or any benefit which is to arise out ofany land and any leasehold or other interest held by any personin any state land, and also things attached to the earth orpermanently fastened to anything attached to the earth".
It is thus clear that the term "land" as employed in the LandAcquisition Act is a term of art and it is in that sense, that is. inthe sense of the above definition of "land" that the term "land" isused in section 2, of the aforesaid Act, and it is in pursuance ofsection 2(1) of the Land Acquisition Act that the relevantminister had made the decision that the land in question viz.Galwala Watta is needed for a public purpose. As at present,the petitioner is in physical occupation of the said land workinga quarry thereon. It is to be observed that the term "land" asused in the Land Acquisition Act includes or means not only, soto say, the solid part of the earth's surface, that is, the groundor soil, but also buildings thereon. As remarked above, thepetitioner, as at present, is working a quarry on the land inquestion on which land, although not pointed out in thesubmissions, there are buildings, as borne out by 1R1, whichstructures or buildings apparently belong to the petitioner. The
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submission of the petitioner's counsel seems to be that the Statecannot acquire ownership of this land as it (the land) alreadybelongs to the State or as the title to the same already resides inthe State. To reproduce the relevant excerpt from his written
submissions: "furthermoreLand Acquisition Act could
only be used to acquire private lands and not State lands".
But this submission is untenable in the light of the definitionof the term "land" as used in the Land Acquisition Act becausethe term "land" means not only the land itself but also anyinterest in the land or any other structure erected on the land.
The learned counsel for the petitioner, must also be takento have submitted that the respondents – the 2nd respondent(Land Commissioner -Western Province) and the 3rd respondentwho is the Divisional Secretary, Kaduwela, in particular, hadcommitted themselves to one course of action, that is, to givethe petitioner a lease of an extent of 2 RR 21 PP out of the entireextent of land described in the notice (P10) issued under section2 of the Land Acquisition Act to the effect that the land is neededfor a public purpose. It was submitted, if I may fine down hissubmissions, by the Learned Counsel for the petitioner that thiscommitment had arisen in consequence of the statements inP4, P4(a) P5 – P8 which statements are analogous to promisesor undertakings to grant a lease to the petitioner – if, in fact,they are not veritably so, and that the Is1 – 5th respondents areprecluded form shrinking back from that commitment.
P 2 a (gazette notification) evidences the fact that a lease ofthis land had been originally granted to W. D. Wimalasena on16th August 1985. The uses to which the land would be putwere to run a garage for the repair of motor vehicles and carryon a metal works site. Wimalasena was the father of thepetitioner. Thereafter. Provincial Land Commissioner (WesternProvince) who is the 2nd respondent had considered the matterand had made a recommendation to the Commissioner of Landsthat a lease of the relevant property be given to the petitioner asevidenced by P4 dated 03. 08. 1994. By letter P4(a) dated
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30. 05. 1996 the Commissioner of Lands instructed theProvincial Land Commissioner, Western Province. (2ndrespondent) to "give" an extent 2 roods 21 perches to thepetitioner, and take possession of the balance land – the extentof the entire land being 1A. 2RR. 3PP. Acting on thoseinstructions, the Provincial Land Commissioner (2nd respondent)had written to the petitioner inquiring from him by letter (P6)as to whether he was willing to take only 2RR. 21PP out of theentire land to which suggestion the petitioner had readily agreed,By P7 dated 11.09. 1996 the District Secretary – Kaduwela (3rdrespondent) had invited the petitioner to call at the office of theDivisional Secretariat to formally hand over possession of theland to the State whilst retaining 2RR. 21 PR as agreed betweenthe parties. It is to be observed that the Provincial LandCommissioner, Western Province (2nd respondent) had alsodirected or instructed the Divisional Secretary (3rd respondent)by letter dated 14. 08. 1996 (P5), with a copy to the petitioner,to take over possession of the entire land on behalf of the State-less (except) the extent that had been promised to be "given" tothe petitioner – presumably on lease.
There is no gainsaying that, inasmuch as the course ofdealing of the above – mentioned officials had engendered inthe petitioner a legitimate expectation, they cannot be held anylonger to retain their discretion or any choice of alternatives butbe obliged to act so as to fulfil that expectation which thebehavior or the conduct of the officials had aroused in thepetitioner. The Learned Counsel for the petitioner, although hedid not articulate the position with precision, or distinctly(perhaps, the learned counsel felt that the injustice that his client(petitioner) had suffered was ineffable (or too great for words)seems to say that there is unjustifiable inconsistentcy betweenthe conduct and representations made by the aforesaid officialson the one hand and the decision of the 1st respondent (theMinister) on the other in acquiring the relevant land. It may.perhaps, be argued that although a legitimate expectation hadbeen aroused – the Is' respondent (Minister) who took thedecision to acquire the land under section 2 of the relevant
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Act was not the one whose conduct created that expectation. Inother words, the decision – maker has not induced thelegitimate expectation.
But all the functionaries or officials, at least, theCommissioner of Lands, Western Province (2nd respondent) andthe Minister of Lands (1st respondent) who tooks steps, underthe Land Acquisition Act, to acquire the land, the DivisionalSecretary (3rd respondent) who had even gone to the length ofinviting the petitioner to call at his office, in order to "give" thepetitioner an extent of 2RR-21PR had acted on behalf of or asrepresentatives of the State or the relevant ministry of the CentralGovernment. The Commissioner of Lands (of the CentralGovernment) or rather his deputy, by P4) a dated 30. 05. 1996instructed (with a copy of the same to the petitioner) theProvincial Land Commissioner " to give" an extent of 2RR 21PPto the petitioner and take over, on behalf of the state, the rest ofthe land.
The Commissioner of Lands (5th respondent) obviouslycomes under the purview of the Ministry of Lands of the CentralGovernment. As such, there is no scope for the argument thatthe ministry or the minister (1st respondent) is not bound byan expectation or are not obliged to fulfil an expectationgenerated by the conduct of or undertakings given to thepetitioner by the officials who operate under the aegis, so to say,of the Ministry of Lands of the Central Government of whichMinistry lsl respondent is the Minister or the head. In fact,legitimate expectation could be said to arise against the Ministry,if not the State, Public Authority or a ministry or the State hasnecessarily to act through its officials or officers.
There is a group of thinkers , of whom Lord Denning wasthe most outstanding, who take the view that in circumstanceswhen public bodies and officers take it upon themselves toassume authority in respect of a matter relating to a citizen -the citizen is entitled to rely on the officials having the authoritythat they have asserted. In Re L (AC) (an infant)"1 Cumming –
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Bruce J held that the local authority, having misled the motherin to believing that she need not lodge a second formal objectionto the authority's application for parental rights, is not entitledto rely on her failure to lodge the second objection in due time.A case which deserves mention in this context is Robertson u.Minister ojPensions121. Robertson who was an army officer wasinjured. He would have qualified for a Pension only if hisdisability was "attributable to military service". To Robertson'sinquiry from the War office the reply was as follows: "your casehas been duly considered and your disability has been acceptedas attributable to military service". On the faith of that letterRobertson did not take the steps he would otherwise have takento get independent medical opinion. Robertson was injured inDecember 1939 and entitlement to Pension in respect of injuriessuffered after September 1939 should have been dealt with bythe Minister of Pensions. That ministry later decided thatRobertson's injury was not attributable to military service. ThePensions Appeal Tribunal upheld that decision and Robertsonappealed against that decision on the ground that the ministerwas bound by War office letter to the effect that injury was"attributable to military service".
Lord Denning said that the War office letter was on the faceof it an authoritative decision intended to be binding and to beacted on. Robertson's forbearing to get independent medicalopinion made the letter from the War office binding. Thedepartment had assumed authority over the matter andRobertson was entitled to assume that the War office hadconsulted the Ivn.uster of Pensions. Lord Denning based hisjudgment also on the point: that the War office was bound as itwas but an agent for the crown. As the War office was an agentof the crown, the crown was bound. And as the crown wasbound, so were its other departments. However, the concern ofthe courts in these cases has been their unwillingness to allowthe concept of legitimate expectation to result in the enlargementof the powers actually conferred on an authority by the termsof legislation. It is not all that clear what the petitioner in thiscase claims by way of relief. He seems to be asking for a lease of
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sorts. It had been pointed out by the learned Senior StateCounsel that a long lease can be granted only by Her Excellencythe President. But the petitioner cannot be expected to knowthe limits of authority of the officials who made the petitionerunderstand that the State was willing "to give" the petitioner anextent of 2RR. 21PP if the petitioner was agreeable to relinquishthe balance extent of the land. In any event, there are statutoryprovisions in the State Lands Ordinance enabling the Presidentto delegate powers relating to the grant of leases to the ministersand to officials (Vide section 105 of the State Lands OrdinanceNo. 8 of 1967) as amended assuming that it is only H. E. thePresident who can grant the lease.
Thus, public authorities have been held bound byassurances given in disregard of statutory requirements uponwhich an individual relied to his detriment vide wells v. Ministerof Housing and local gouerment131. The Court of Appeal(England) applied the same principle to a determination by aplanning official even though the power to decide had not beenformally delegated to the official. However, one fact that mustnot be lost sight of is that the concept of legitimate expectationcannot be made use of to compel a public authority to overstepthe bounds of statutory powers. Ofcourse, in this case, asstressed by the learned Senior State Counsel, who withunflagging zest, adduced every possible argument, there arecompeting considerations of public interest. This land is soughtto be acquired on an application made to the Is' respondentwho is the Minister of Lands (of the Central Government) bythe Ministry of Agriculture of the Western Provincial Council forthe purpose of setting up a veterinary surgeon's office, which,according to the averments in the affidavit of the lsl respondent(Minister of Agriculture and Lands of the Centred Government)was a pressing need in the area. There cannot be any doubtthat the Minister (1st respondent) possessing discretionarypowers should retain an unencumbered discretion to exercisethose powers as and how public interest may from time to timerequire. In developing the doctrine of legitimate expectation thecourt seeks to achieve a compromise between that duty and
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the idea that for a body to exercise such discretionary powersin such way as confounds the expectations resulting from itsown prior behaviour may itself be considered an abuse ofdiscretionary power.
There is a substantial body of legal opinion which seemsto suggest that there is a judicial reluctance to allow claims basedon legitimate expectation to succeed or prevail over the publicinterest. The learned Senior State Counsel seemed to suggestthat the respondents, being public functionaries could at anytime resile from any promise or undertaking when, as in thiscase (according to her submission) there is an overriding publicinterest that they should do so. Ofcourse, the court has to bealive to the possibility that any policy or undertaking given by apublic body or official might have to be revised from time totime as the public interest required. But in this case thepetitioners interest lay in some ultimate benefit which he hopedto attain or possibly retain. In this context it is apposite to recallthat the 3rd respondent (Divisional Secretary) had even inviteddie petitioner by letter (P7) to call at the office of the former, sothat the petitioner could formally be "given", presumably on alease, an extent of 2RR 21PP out of the entire land – upon thepetitioner relinquishing or in consideration of the petitionersurrendering possession of the rest of the land in question. It isa strange quirk of fate that it was this self-same official (K. B. H.Perera) i.e. Divisional Secretary (3rd respondent) who later byhis letter P12 informed the petitioner that he would take overpossession of the entire land under section 38(A) of the LandAcquisition Act. It is worth pointing out that the petitioner isalready in occupation of the entire land having being validlyplaced in possession of the same by the relevant authorities orat least, the authorities had no objection to the petitioner beingin possession in succession to his father. Thus the petitionerhad even a protectable interest quite separate from that derivedfrom the legitimate expectation. The petitioner clearly had anexpectation that he would be given 2RR 21 PP because he hadbeen given as assurance to that effect by the 2nd respondent(Provincial Land Commissioner) by P6 and by the 3rd respondent(Divisional Secretary) by P7. The Commissioner of Lands
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(Central Government) himself must be taken to have indicatedto the petitioner by P4(a) that the State or the authorities wereagreeable or willing "to give" the petitioner an extent of 2RR21PP, because, although P4(a) had been addressed by theCommissioner of Lands to the Provincial Land Commissionerrequiring the latter "to give" the petitioner 2RR 21PP if thepetitioner and the heirs of the petitioner's father (Wimalasena)were agreeable to surrender possession of the rest of the landto the State a copy thereof had been sent to the petitioner forhis information. It can even be said that the petitioner had actedon those indications which amount to promises or assurancesgiven, in particular, by the 2nd and 3rd respondents, who areState officials or agents, to his (petitioner's) detriment. It is feltthat acting to one's detriment in reliance upon a promise orundertaking given by a public authority or anyone else canstrengthen or add to the weight of the legitimate expectationinduced thereby, in such a situation, therefore, thecounterbalancing public interest should be weightier than in acase where there had been no such detrimental reliance. It isnot without interest to note that, in a way. in this case there issome sort of detrimental reliance on the part of the petitionerbecause he had agreed to surrender possession of the balanceland in consideration of promise held out by the 2nd respondent(Provincial Land Commissioner) and the 3rd respondent(Divisional Secretary) "to give" the petitioner 2RR 21PP if thepetitioner agreed to surrender the balance extent of land whichthe petitioner was willing to do.
The petitioner ought to be considered a person with avested interest i.e. a personal interest in the land in questionwith an added expectation. There are structures and buildingson the said land belonging to the petitioner. He is carrying on abusiness or industry on the land which yields him an income.That is the way in which the petitioner earns his living. It isstated in de Smith thus: "Hearing is required in most situationswhere licences or similar benefits are revoked. A strongpresumption exists that a person whose licence is threatenedwith revocation should receive prior notice of that fact and an
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opportunity to be heard. The presumption should be especiallystrong where revocation causes deprivation of livelihood orserious pecuniary loss".
As had been held in Innes u Onslow Fane1'1 where there isa vested interest to defend there is an implied right to be heard.
I think that the fairness required the respondents to act incompliance with the undertaking given to the petitioner, asexplained above, by public or State officials and they or theState could not have resiled from the undertaking "to give" thepetitioner a portion of the land which was 2RR 21PP in extent,(even if there was an overriding public interest that they shouldso act) without affording a hearing to the petitioner who was aninterested party and whose interests were threatened withextinction by the acquisition of the land. The petitioner had,undoubtedly, more than a vested interest.
It cannot be gainsaid that the State had undoubtedly theright to acquire this land even assuming that a lease, in fact,had been given. But if the State was going to acquire the land,say, during the currency or duration of the lease and before theperiod of the lease had expired then it was bound to give ahearing to the lessee. To explain the matter further, the Statecould refuse to extend the lease, without giving a hearing tothe erstwhile lessee because since the lease had expired he hadno protectable interest or an interest worthy of protection. Inthe case of Schmidt v. Secretary of State for Home Affairs151Lord Denning MR pointed out that there was a differencebetween the revocation of a licence to be in the country before itexpires and a plea by persons to have a licence extended: theformer situation gave rise to an expectation that they couldremain in the country for the duration of the licence whereasthe latter situation did not. Of course, no lease as yet had beengiven of the promised extent of 2RR 21PP although whatamounts to a promise had, in fact, been given by the stateofficials, as explained above, which has generated anexpectation in the petitioner that the promise or undertakingwould be honoured by the State. One thing that calls for remark
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in this context is that the right to a hearing or, at least, thepetitioner to be consulted had arisen out of the action of officialsthemselves in giving assurances to the petitioner that the Statewould "give" the petitioner an extent of 2RR 21 PR if thepetitioner surrendered the balance land to the State, to whichsuggestion the petitioner, as explained above, had promptlyagreed. This undertaking may or may not be binding on theState, most probably not, but the sacred principle is that noauthority, not even the State, in the generality of circumstances,could resile from an undertaking that one has given withoutfirst giving the person adversely affected by the revocation orwithdrawal of the promise an opportunity to makerepresentations. To defeat the petitioner's legitimate expectationis to do the petitioner an act which should, in the circumstances,have been preceded by a warning , and what is immeasurablymore important was the giving of an opportunity to makerepresentations, The petitioner had been given a warning, fornotice under section 2 of the Land Acquisition Act had beenserved on him. But that was of no use whatsoever unless anopportunity had also been given to offer his thoughts againstthe sudden decision to acquire the land wholesale or altogether- so to speak.
The complaint of the petitioner, that he had a legitimateexpectation that had arisen in him, in consequence of theassurances given by the officials referred to above and thatexpectation was confounded by the summary acquisition of theland in question, is more than than vindicated by the materialbefore me and I have no option, but to quash the acquisition ofthe land by the State which had been done without the expectedand recognised procedure – arising in consequence of thelegitimate expectation that had been induced in the petitioner -being complied with – there being a procedural obligation tohave given the petitioner an opportunity to make representationsprior to taking the decision complained of. In fact, it wouldhave been fitting and proper had an opportunity been affordedto the petitioner to show cause, so to say, as to why the landought not to be acquired or to make his wishes known to the
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authorities in that regard. Section 4 of the Land Acquisition Actmakes provision for making objections to the intendedacquisition of the land which section in this instance had beenby passed over or ignored so that the authorities could actquickly. Public Officers or the State although are at liberty toalter the policy, yet by no means are free to ignore legitimateexpectations engendered by their actions and or conduct. Hadan opportunity been given to the petitioner under section 4 ofthe Land Acquisition Act. for making objections orrepresentations against the proposed acquisition, thisapplication for an order of certiorari would, in all probability,have been dismissed – for, then the scope for arguing thatrelevant considerations had been ignored or not consideredbefore taking the decision complained of would have beenconsiderably diminished and the impression of unfairnesswould have been almost wholly removed. One is apt to recallthe words of Lard Denning MR in Schmidt v. Secretary of
State for Home affairs(supra)"all depends on whether
he has some right or interest or I would add. some legitimateexpectation of which it would not be fair to deprive him withouthearing what he had to say. I strongly feel that an opportunityought to have been given to the petitioner to persuade theauthorities to reconsider the decision or to explain to theauthorities the available options. It is to be recalled, at first, theState did not want to take over the whole land for the State wascontent with the balance land after "giving" the petitioner acertain extent, OA 2RR 21PP to be exact, out of the entire land.If the petitioner had been heard before the decision to acquirethe land in its entirety was made, he (the petitioner) could havearrived at some settlement of the issue or some arrangementacceptable to both the individual (petitioner) and the State whichwould have protected both the "public interest" and the interestof the individual. This would have obviated the need todisappoint or confound the expectation which the petitionerentertained. In Liverpool Taxi Fleet Operators caseLordDenning emphasised that public interest was better served byhonouring rather than breaking undertakings. The doctrine ofinconsistency or of legitimate expectation prohibits decisions
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being taken which confounds or disappoints an expectationwhich an official or other authority or person has engenderedin some individual except, perhaps, where some countervailingfacet of the public interest so requires – this being judged in thelight of the harm being done to the applicant.
I must not be understood to mean that the officials or theauthority could not depart from its undertaking, but theminister and the officials, representing the State to which theland belonged, could do so only after hearing what the petitionerhad to say.
The concept of legitimate expectation had been developedin a Privy Council case i.e. Attorney – General of Hong Kong v.Ng Yuen Shiu171 which drew on the case of R. v. LiverpoolCorporation, ex parte Liverpool Taxi Fleet OperatorsAssociation (Supra).
In both cases an authority had given undertakings abouthow they proposed to deal with illegal immigrants and thegranting of taxi licences respectively. In both cases it was heldthat the failure to honour the undertakings was unlawful. Inthe Liverpool case the undertaking was broken without givingthe interested parties (taxi operators) a hearing and in Ng YuenShiu (above referred to) while the immigrant was interviewed,he was not given an opportunity to make representations aboutthe change in policy which adversely affected him.
Of course, the decision in the case of R. v. LiverpoolCorporation ex parte Liverpool Taxi Fleet OperatorsAssociation case (supra) was not based on the concept oflegitimate expectation, as such, but is usually discussed inrelation to that concept. I think it was would be better and moreinstructive if I set out the facts of that case morefully whichfacts are as follows: Liverpool City Council was under the dutyof licensing a number of taxis it thought appropriate and hadthought it fit to fix the number of taxis at 300. That numberwas maintained for some years. The City Council contemplated
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increasing the number of taxis which was not to the liking ofFleet Operators Association which was interested in the numberof taxis not being increased. The Association Communicatedits view to the council at the invitation of the City Council. TheCity Council made a decision to increase the number by stagesbut accompanied this with an assurance to the Fleet OperatorsAssociation that the scheme to introduce more taxis in stageswould not be put into effect until private bill promoted by it andaimed at controlling the number of private hire vehiclesoperating in the city, was in force. The Council was later advisedthat the aforesaid undertaking given by it to the Fleet OperatorsAssociation was not binding on it and the council without, tellingthe Fleet Operators Association decided to implement theincrease in the number of licences (taxis) forthwith. The Courtof Appeal of England held that while the undertaking not toincrease number of taxis might not be binding on it – yet theCity Council could not resile from or without first givingthe Fleet Operators Association an opportunity to makerepresentations.
Just as much as an undertaking given by an official or arepresentative of the City Council has to be honoured by theCity Council itself or the City Council was. at least, bound to theextent that it could not renege on the promise (given on its behalf)without first giving an opportunity to those affected inconsequence of the departure from the promise – so is the Stateobliged to give a hearing to the petitioner who wall be adverselyaffected for a certainty, if the minister was going to act contraryto the expectations generated in the petitioner by promises madeby officials who were agents or officials of the State, The minister(1st respondent) who formally made the decision to acquire theland and officials who held out the promise were all acting onbehalf of the State and not in their private capacity – theconsequence being that legitimate expectation arises as againstthe State, which has necessarily to act through its officials orfunctionaries who must necessarily be taken have acted by thestate's authority. It is to be recalled that one of the grounds onwhich the decision in Robertson v. Minister of Pensions (Supra)was rested was that the Crown was bound by the war office
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letter (to the effect that Robertson's disability was attributableto military service) as the War office was an agent for the crown.And as the crown was bound, so were its (crown’s) otherdepartments. This is eminently a situation in which the maxim:"qui Jacit per altum Jacit per se" should apply. This meansthat he who does a thing by the instrumentality of another isconsidered as if he had acted in his own person. It is the vogue,nowadays, to invoke the concept of legitimate expectation,without discernment almost blindly and by force of habit – as itwere. Although the petitioner has sought relief relying on theconcept of legitimate expectation, he had chosen to slur over orbe mealy – mouthed or not out – spoken as to the question asagainst whom the legitimate expectation had arisen. It is obviousthat the petitioner did not know or was not sure.
Apart from vaguely saying that a legitimate expectation hadarisen, no one pointed out that the legitimate expectation hadarisen as against the State itself. In fact, none of the aspectsdiscussed in this judgment nor the basis on which the legitimateexpectation is held to be enforceable as against the State itself,nor the authorities cited in the course of this judgment wereever presented to me at the hearing. The matter was left in anutterly inconclusive State at the hearing. In fact, it is the facttliat the legitimate expectation is held to be enforceable againstthe State itself that had enabled the petitioner to succeed inthis case. It is the fact that the legitimate expectation had arisenagainst the State itself (on the basis that the State must be heldto have acted through its officers, who are agents of the State)that makes is (expectation) enforceable against the State. If ithad been otherwise, that is, if the legitimate expectation hadnot arisen directly as against State itself – then the State couldstill have proceeded to acquire the land – undeterred by the factthat the legitimate expectation had arisen as against the officersonly – because it is the State that is seeking to acquire the land.But the State is bound, because the officials above – mentionedhad, in giving assurances, acted as agents of the State, and notin their private capacity. If the undertaking referred to abovehad been given by the officials in their private capacity, the Statewouldn't incur any obligation to honour them – as they (officials)
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had not acted in their capacity as servants of agents of the State.THE DECISION OF THIS CASE WHICH APPEARED TO BE SOESOTERIC, AT THE OUTSET, RESTS ON ONE SIMPLEPROPOSITION. VIZ. THAT THE STATE ITSELF HAS TOHONOUR AND CANNOT RENEGE ON THE PROMISE HELDOUT BY ITS SERVANTS TO THE PETITIONER.
The doctrine of legitimate expectation is not limited to casesinvolving a legitimate expectation of a hearing before some rightor expectation was affected, but is also extended to situationseven where no right to be heard was available or existed butfairness required a public body or official to act in compliancewith its public undertakings and assurances. Simon Brown LJexplained this aspect in R. o. Devon Country Council, ex partsBaker and another181 in which the concept of legitimateexpectation was used to refer to the fair procedure itself i.e. thatthe applicant claims to have a legitimate expectation that publicauthority will act fairly towards him. It is not procedurally fairfor the State to have promised the petitioner an extent of land2RR 21PP in extent upon his surrendering the balance landand then proceed to acquire the whole of the land without thepetitioner being given any opportunity to make representations.
In this case the State had though its officials acted in a waywhich would make it unfair or inconsistent with administrationto have denied the petitioner an inquiry into his case or anopportunity to make representations.
For the aforesaid reasons I do hereby grant an order ofcertiorari quashing the notice under section 2 of LandAcquisition Act (P10) and also quashing the order made undersection 38(A) of the Land Acquisition Act. respectively, in so faras they relate to the land which is the subject – matter of theapplication to this court.
Application allowed.