Janas Khan and others Vs Director General (Headquarter) Civil Works Organization, Rawalpindi and others

PESHAWAR HIGH COURT, PESHAWAR

(Appellate Jurisdiction) FAO No. 232-P/2024

JANAS KHAN AND OTHERS

Vs.

DIRECTOR GENERAL (HEADQUARTER) CIVIL

WORKS ORGANIZATION, RAWALPINDI AND

OTHERS

Petitioner(s) by: Mr. Ahmad Ali, Advocate (through video-link).

Respondent(s) by: Mr. Masood Ahmad Khattak, Advocate.

Research assistance: Mr. Mazhar Ali Khan, Research & Reference Officer

Date of hearing: 22.06.2026.

JUDGMENT

MUHAMMAD FAHEEM WALI, J.

1.Through this order, the instant FAO against the order dated 21.09.2024, passed by the learned Additional District Judge-I/Executing Court, Swabi, shall be disposed of.

2.The brief facts of the case are that the lis originated from the acquisition of land measuring 58-Kanal 04-Marla for defense purposes (specifically for a missile and ammunition dumping

ground), which was formalized through Award No.

2 dated 12.11.2009. Dissatisfied with the compensation fixed by the Collector, the appellants/ petitioners filed a reference under Section 18 of the Land Acquisition Act, 1894 (LAA). Although the reference was initially dismissed on 02.02.2012, it was subsequently remanded by this Court for fresh determination. Following the remand, the learned Referee Court, via judgment and decree dated 08.03.2016, enhanced the compensation to Rs.

300,000/- per kanal, though it notably remained silent regarding 15% compulsory acquisition charges and 6% interest. This judgment was challenged by the respondents through RFA No. 92- P of 2016, which was dismissed by this Court on 08.10.2018. The matter eventually reached the Supreme Court of Pakistan, which, through its judgment dated 31.08.2021, dismissed the civil appeal of the acquiring authority, thereby according finality to the enhanced compensation decree.

3.The current phase of litigation

commenced during execution proceedings when the

Decree Holders filed for execution and a Goshwara (statement of accounts) was submitted by the Collector. The Judgment Debtor (Respondent No. 1) filed an objection petition challenging the Goshwara, asserting that the Executing Court could not go beyond the decree to award 15% compulsory charges or 6% interest that were absent in the original judgment. Concurrently, the Appellants filed an application under Sections 151 and 152 of the Civil Procedure Code (CPC) for the correction of what they termed a clerical or arithmetical omission regarding these statutory charges and interest. While the Executing Court initially dismissed both applications on 23.12.2020, this Court, in FAO No. 18-P of 2021, set aside that order on 11.03.2024 and remanded the case with a specific direction to re-hear the parties on both the objection petition and the correction application.

4.Post-remand, the learned Executing Court passed the impugned order dated 21.09.2024.

Therein, the court held that while the 15% compulsory acquisition charges were a statutory

right that followed the decree, the claim for 6% interest required a specific judicial determination that was absent in the original decree. Furthermore, the court deemed itself functus officio regarding the correction of the decree under Section 152 CPC, reasoning that the original decree had merged into the final judgment of the Supreme Court.

Consequently, the Executing Court partially dismissed the application to the extent of the 6% interest, which has led the Appellants to assail the said order through the instant appeal.

5.Arguments of the learned counsels for the parties heard and with their valuabale assistance record of the case perused.

6.The core question that falls for

determination before this Court is whether the omission to award statutory interest under Section 28 of the Land Acquisition Act, 1894, on the enhanced compensation by the Reference Court, is a mere accidental slip or omission rectifiable by the Executing Court, especially given the mandatory and compensatory nature of such interest, or if the

Executing Court was justified in refusing it on the grounds of functus officio and the doctrine of merger.

7.The statutory scheme of the LAA, facilitates the compulsory acquisition of private property through a structured sequence, beginning with the publication of a preliminary notification under Section 4 to investigate suitability and followed by a conclusive declaration under Section 6 that the land is required for a public purpose.

Following this declaration, Section 9 mandates the issuance of notice to all interested persons to submit their claims, leading to an administrative enquiry and a formal award by the Collector under Section 11. Dissatisfied parties may then invoke Section 18 to refer the matter for a judicial determination of compensation. Beyond the base market value, Section 23(2) mandates that the Court shall award an additional fifteen per centum (15%) as “compulsory acquisition charges” where the acquisition has been made for a public purpose and a sum of twenty-five per centum (25%) on such

market-value if the acquisition has been made for a Company. The Act further addresses the accrual of interest through two distinct provisions: Section 28 empowers the Court to award interest on the excess amount when the judicial compensation surpasses the sum originally awarded by the Collector, whereas Section 34 creates a mandatory statutory obligation for the Collector to pay 6% interest from the time of taking possession if the compensation was not deposited beforehand. In essence, the scope of Section 28 is focused on the judicial enhancement of the award, while Section 34 serves as a mandatory penal consequence for the failure to tender payment at the moment of dispossession.

8.Sections 28 and 34 of the LAA are crucial provisions governing the payment of interest on compensation awarded for acquired land. Section 28 of the LAA, as applicable in Khyber Pakhtunkhwa, outlines the provisions for interest on excess compensation. It states:

“If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the

Collector did award as compensation, the award of the court may direct that the Collector shall deposit with the Court such amount as determined by it.”

9.Similarly, section 34 provides:

“[(34). — When the amount of such compensation is not paid or deposited on or before-taking possession of the land, the Collector shall pay the amount awarded with simple interest thereon at the rate of six per centum from the time of so taking possession until it shall have been so paid or deposited].”

10.To resolve the controversy regarding the statutory add-ons, it is imperative to first settle the legal status of Section 28 and Section 34 of the LAA.

It is a settled principle of law that interest awarded under these sections is not a mere bounty or interest stricto sensu, but is “beneficial and compensatory” in nature. As held by the Honorable Supreme Court in Nawabzada Abdul Qadir Khan v.

Land Acquisition Collector, Mardan (2023 SCMR 950), this interest covers the financial loss suffered by a landowner from the date of the state’s unilateral exercise of eminent domain until the actual payment is made. Within the specific legal landscape of Khyber Pakhtunkhwa, the 2001 Amendment to Section 28 draws a technical

distinction between the “sum” (the enhanced market value) and the “amount” (the compensation for delay). Therefore, the determination of this “amount” is a mandatory judicial duty to ensure that the landowner is brought back to the financial position they occupied before the deprivation of their constitutionally-guaranteed proprietary rights under Article 24 of the Constitution.

11.Consequently, the 15% compulsory acquisition charges under Section 23(2) and the interest under Sections 28 and 34 are not extraneous reliefs but integral components of the “compensation package.” Reliance in this regard is placed on Chairman, Sarhad Development Authority PIA, Peshawar v. Tafoor-ur-Rehman (2023 SCMR 2142), whereby the Supreme Court while dealing with a question that whether amount granted under section 23(2) of the Act qualifies as compensation paid to the land owners, and it was held that 15% charges under Section 23(2) is a constitutionally-grounded compensation for the involuntary forfeiture of private property.

Moreover, ensuring a “fair compensation” is tantamount to guarding the constitutional rights as noted by the Hon’ble Supreme Court in District Collector Land Acquisition, District Swabi v.

Qaisar Ali Khan and others (2026 SCMR 413):

“9. The role of the Court is to ensure fair compensation in acquisition of property as guardian of constitutional rights. Though the doctrine of eminent domain is the inherent power of the State to compulsorily acquire private property for a public purpose even against the owner's will but this power is not absolute and is strictly regulated by the Constitution to prevent the despotic exercise of state authority while cautiously maintaining balance with the fundamental rights of citizens provided under Articles 23 and 24 of the Constitution. In our view, the most judicious function of the Courts is to ensure a fair amount of compensation that truly reflects the actual value of the property. The most recognizable work of fiction is structured on the metaphor “gold for gold” not copper for gold” which is predominantly put in as judicial principle for guaranteeing just and fair recompense so that the owner must not be left in a sorrier financial crunch but receive money that is no less than the loss imposed in the public interest or for public good.”

12.Additionally, the statutory scheme

provides that if a Collector fails to tender payment at the time of taking possession, the penal and compensatory consequences under Section 34 are triggered automatically. When the matter reaches the Reference Court and the compensation is enhanced, Section 28 further mandates the Court to determine the “amount” over and above the

enhanced “sum” to indemnify the owner for the loss caused by the delay. In the instant case, the record reflects that the land was acquired in 2009, yet the Appellants remained deprived of the enhanced compensation (Rs. 300,000/- per kanal) for over a decade. To hold that such mandatory statutory benefits can be withheld due to a mere silence in the decree would defeat the very object of the Act, which is to provide “just compensation”.

13.The Respondents have heavily relied upon the judgment in Ch. Ahmed Nawaz v. Province of Punjab (2015 SCMR 823) to assert that the Executing Court cannot travel beyond the four corners of the decree. However, this reliance is misplaced as the cited precedent is clearly distinguishable from the facts of the present lis.

Firstly, the Ahmed Nawaz case primarily dealt with a prayer for compound interest, which is distinct from the mandatory statutory simple interest sought here. Secondly, that case was rooted in the law applicable to the Province of Punjab.

Conversely, the present matter is governed by

section 28 of LAA as applicable in Khyber Pakhtunkhwa, which, as interpreted in Government of Khyber Pakhtunkhwa v. Misal Khan (2022 SCMR 277), removes the 6% cap and grants the Court broad power to determine any “just, proper, and reasonable” amount as compensation for delay.

Unlike the Punjab regime, the Khyber Pakhtunkhwa law envisages a proactive judicial determination of the “amount” based on the factum of possession and the date of actual payment. Thus, the rule of thumb established in Ahmed Nawaz cannot be applied as a bar to mandatory statutory relief under the specific Khyber Pakhtunkhwa legislative scheme.

14.The learned Executing Court dismissed the application under Section 152 CPC primarily on the grounds of functus officio and the doctrine of merger, reasoning that since the decree was affirmed by the Supreme Court, the lower court had no jurisdiction to alter it. It is a fundamental principle of our jurisprudence that the Doctrine of Merger and the principle of Functus Officio serve the finality of litigation. As held by the Supreme

Court in District Officer Frontier Constabulary Hayatabad, Peshawar v. Haji Amir Badshah and others (2025 SCP 162), the logic of merger ensures that there is only one operative order governing the subject matter. Further reference may be made to Sahibzadi Maharunisa and another v. Mst.

Ghulam Sughran and another (PLD 2016 SC 358);

Maluvi Abdul Qayyum v. Syed Ali Asghar Shah and 5 others (1992 SCMR 241); Commissioner of Income-Tax, Bombay v. M/S Amritlal Bhogilal and Company (AIR 1958 SC 868); Kunhayammed and others v. State of Kerala and another (AIR 2000 SC 2587); Collector of Customs, Calcutta v. East India Commercial Co. Ltd., Calcutta and others

(AIR 1963 SC 1124).

15.Similarly, the Supreme Court in Kh.

Muhammad Fazil v. Mumtaz Munnawar Khan Niazi (2024 SCMR 1059) establishes that once a court has finalized its task, its authority is ended.

The Court held:

“10. [...] The Latin maxim “functus officio” denotes that once the competent authority has finalized and accomplished the task for which he was appointed or

engaged, his jurisdiction and authority is over and ended or, alternatively, that the jurisdiction of the competent authority is culminated once he has finalized and accomplished his task for which he was engaged. If the Court passes a valid order after providing an opportunity of hearing, it cannot reopen the case and its authority comes to an end and such orders cannot be altered save for where corrections need to be made due to some clerical or arithmetical error.”

16.Collectively, these doctrines: merger and functus officio aim to prevent the “chaos” of evolving judicial orders, as explained by worthy Lahore High Court in Fawad Ahmed v. Election Appellate Tribunal, Rawalpindi (PLD 2018 Lahore “8. [...] The functus officio is the principle in terms of which the decisions of tribunals/Courts are deemed to be final and binding once they are made. They cannot, once made, be revoked by the decision maker. Both the granter and receiver of rights know where they stand. The doctrine supports fairness and certainty. If a Court could continually entertain applications to amend its decisions then appellate record, would be subject to change, as would the litiqants relative legal positions, making for breeding grounds for Choas Finality lends credence to the validity of the judicial decision. A decision that at the mercy of the judge's change of heart after it is made is uncertain and unreliable and by extension lacks validity. Moreover, the doctrine of functus-officio enables effective administration of justice by ensuring a stable case for appellate review.”

17.The above cited cases establish that the doctrines of merger and functus officio serve as essential safeguards for the finality of litigation, ensuring that once a decree is affirmed by a superior court, it becomes the sole operative order.

This legal framework prevents lower courts from reopening cases or altering finalized decisions, thereby maintaining procedural certainty and avoiding “judicial chaos.” However, Section 152 CPC acts as a specific statutory exception to these bars on certain grounds. Section 152 lays down a special procedure for the correction of clerical or arithmetical mistakes in judgments, decrees or orders arising out from any accidental slip or omission. The question whether the doctrine of functus officio completely ends the authority of a court was examined in Muhammad Aslam Lone v.

Additional District Judge, Gujranwala (PLD 2008 Lahore 373), wherein it was clarified that while a court is generally functus officio after signing a decree, the correction of clerical or arithmetical mistakes remains a valid exception. Similarly, regarding the application of the doctrine of merger to correctional application, it has been long settled by the Supreme Court in the case of Joydeb Agarwala v. Baitulmal Karkhana Ltd (PLD 1965 Supreme Court 37) observing that while deciding

application of correcting a decree, the rule of merger does not apply, and the court that committed the mistake remains competent to rectify it. This view was re-affirmed in the case of Muhammad Munawar v. Ch. Khurshid Alam (1979 SCMR 159), wherein it was held the doctrine of merger is not attracted to application under section

152 CPC.

18.In wake of the above, it may be concluded that the doctrines of merger and functus officio collectively preserve the finality of litigation and uphold judicial propriety by maintaining hierarchical consistency within the legal system. By ensuring that a decree, once affirmed, becomes the sole operative instrument, these principles prevent jurisdictional breaches and stabilize the rights of parties. Consequently, a judgment that has attained finality cannot be reopened except where expressly authorized by law; at the post-judgment stage, the court’s authority is limited to the rectification of accidental slips or clerical errors under Section 152 of the Code of Civil Procedure. This legal discourse

does not end here. The superior Courts have gone a step further by holding that in view of section 42 (2)(c) CPC, even the executing court is empowered to correct the decrees. Reference in this regard may be made to Nazir Ahmad and 6 others v. Ghulam Mustafa (1995 SCMR 163) & Peer Baksh and others v. Mst. Anwar Mai and others (1996 SCMR

19.While the doctrines of merger and functus officio serve to finalize litigation, an exception to these rules exists where a court inadvertently omits relief it was statutorily or constitutionally mandated to provide. The failure to include statutory interest under Sections 28 and 34 of the LAA, which constitutes a compulsory part of the compensation package is a rectifiable “accidental slip” or “omission” under Section 152 of the Code of Civil Procedure. As held in Syed Saadi Jafri Zainzabi Vs. Land Acquisition Collector and Assistant Commissioner (PLD 1992 SC 472), such mistakes of the Court should not cause a party to suffer, and the Court has the jurisdiction and duty

to correct them at any time. The Court held:

“8 [...] Section 152 enables a Court to correct the mistake, omission or error in the judgment, decree or order which has crept into it inadvertently and unintentionally. Such mistakes are mostly caused due to inadvertent mistake of the Court. The rules of procedure as provided by C.P.C. are intended to foster justice, therefore, no one should be allowed to suffer due to the mistake of the Court.”

20.Another important point adjudicated upon by the Supreme Court in Syed Saadi (supra) was that under the law, where a Court is statutorily bound to grant a relief even without it being specifically sought, its failure to do so constitutes an “accidental slip or omission”. The Court held:

“9. The Court has jurisdiction to correct the clerical or arithmetical mistakes or errors caused due to accidental slip or omission in a judgment, decree or order. Depending on facts, it confers a wide discretion on the Court to correct, (i) clerical or arithmetical mistake, (ii) errors caused due to accidental slip or omission in the judgment, decree or order. Such power can be exercised at any time. Where the Court is bound to grant a relief which the party seeks, or where the Court is bound to grant relief even without it being sought by a party and if unintentionally or inadvertently the Court does not grant such relief, it would be justified at any time to correct such accidental omission or error by exercising power under section 152.”

21.In Shabbir Ahmad v. Additional District Judge, Multan (PLD 2024 Lahore 76), the Lahore High Court clarified that the powers under Section 152 CPC are “disjunctive and qualified,” allowing the Court to rectify an “error arising thereon from any

accidental slip or omission” independently of mere clerical mistakes. The Court interpreted the phrase “accidental slip or omission” to mean “to leave out or failure to mention something unintentionally.”

Under this interpretive lens, the failure to include mandatory statutory interest is not a final adjudication but an unintentional exclusion that “could be supplemented or added” to the decree. By correcting such an oversight, the Court acts to “foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings,” ensuring that a party does not suffer due to a lapse that was never intended to be a conscious denial of a legal right.

22.Consequently, as the grant of statutory interest under Sections 28 and 34 of the LAA is a mandatory obligation rather than a contentious matter requiring fresh adjudication, its omission from the decree constitutes a rectifiable “accidental slip” under Section 152 CPC. Such an omission does not attract the bar against re-opening finalized matters, as otherwise contemplated in Baqar v.

Muhammad Rafique and others (2003 SCMR

1401), because the Court is simply aligning the decree with an automatic statutory entitlement.

Therefore, the original court retains the inherent and statutory authority to amend the decree to reflect the compulsory “compensation package,” ensuring that the principles of finality and merger are not used as a shield to deprive a citizen of constitutionally-grounded proprietary rights.

23.In light of the above, the impugned order dated 21.09.2024 is set aside. The matter is remanded to the learned Executing Court (ADJ-I, Swabi) with the direction to entertain the Appellants’ application for the determination of the “amount” under Section 28 read with Section 34 of the LAA. The Court shall conduct the necessary factual inquiry regarding the date of possession and the duration of the delay to determine a just and reasonable rate of interest, thereby ensuring that the Appellants receive their full statutory compensation in accordance with the mandates of the law and the authoritative pronouncements of the superior courts.

Sd/-

JUDGE

Date of hearing: Date of signing:

SB: Honorable Mr. Justice Muhammad Faheem Wali