Judgment 1. The appellants Mukund Das Rathi and Vishnu Kumar Rathi have preferred this appeal under Section 37 of the Arbitration and Conciliation Act, 1996 (in short `the Act of 1996’) assailing the order dated 22.12.2016 passed by Additional District Judge No.1, Ajmer in Civil Misc. Matter No. 33/2012 (221/2012) in application under Section 34 of the Act of 1996 (Chief Project Officer DFCC Vs. Mukund Das Rathi & ors.) whereby the appeal filed by respondent No.1 was allowed and the matter was remanded back for fresh adjudication of the compensation by the arbitrator i.e. Divisional Commissioner, Ajmer. 2. Brief facts of the case are that the claimant appellants filed a claim petition bearing No. 88/2011 under section 20 (f) (6) of the Railways Act 1989 (in short `the Act of 1989’) for determination of compensation in relation to the impugned award dated 10.3.2011 for the land consisting of survey number 1053-0.0537 hectares, survey no. 1057-0.332 hectares and survey no. 1051-0.1240 hectares before the Divisional Commissioner, Ajmer for determination of the compensation as per the provisions of section 20 (f) (6) of the Act of 1989 which was required for the purpose of dedicated freight corridor. The land acquisition proceedings under chapter IVA of the Act of 1989 came to be initiated by issuing the notification dated 16 March 2009 which was published in the extraordinary Gadget of India dated 18th March, 2009. The claimants submitted their objections before the competent authority i.e. the Sub-Divisional Officer on 29th March 2010. The competent Authority submitted its report to the Central Government and the Central Government, thereafter, made a declaration under section 20 E of the Act of 1989. The Notification under subsection 4 of section 28 (F) was issued and published in the newspapers. 3. The claimant appellants took objections before the competent authority that the property is personal property of the claimants and cannot be referred to as agricultural land. It was further stated that on the property, a marriage garden was being run by the partnership firm to whom the property was leased out by the claimants. The said firm was granted electricity connection in commercial category. It was further stated that on the property, a marriage garden was being run by the partnership firm to whom the property was leased out by the claimants. The said firm was granted electricity connection in commercial category. It has been further referred that potential value of the land being acquired by the Central Government for dedicated freight corridor is approximately Rs.23,55,75,465/- and the claimants are earning a monthly rental income of Rs.2 lakhs per month that is Rs.24 lakhs per annum from the property in question. The claimants submitted a valuation report before the competent authority prepared by an authorised property Valuer of the central government as well as the Railway Board. The D. L. C rates of the entire area were also submitted by the claimants. 4. After considering the objections, the competent authority has awarded total amount of compensation in favour of the claimants to the tune of Rs. 47,58,247/- which has been divided equally between the claimants. 5. The said order of competent authority/sub-divisional officer, Beawar was assailed by claimant/appellants before the Divisional Commissioner, Ajmer, who had been named/designated as sole arbitrator under the provisions of Act of 1989, to decide the reference, as may be put before him by the aggrieved party, who is not satisfied by the order of compensation so passed by the Competent Authority/Sub-Divisional Officer, Beawar. 6. The Learned Divisional Commissioner, Ajmer: Sole Arbitrator before whom the claimant/appellants assailed the order of competent authority dated 10.03.2011 and requested for determination of the compensation as per the provisions of Section 20 (f)(6) of the Act of 1989 after hearing both the parties passed the final Order dated 07.09.2012 and remanded the matter back to the Competent Authority giving specific direction to issue revised award calculating the amount at a rate so mentioned in order adding 60 % solatium and interest in terms of provisions of Act of 1989 and decide the effect of lease deed after giving opportunity of hearing and filing documents by both the parties. The learned Divisional Commissioner, Ajmer gave the following findings while passing the order dated 7.9.2012:- mijksDRk of.kZr U;kf;d n`"VkUr ,oa jsyos ,DV esa nh x;h ekfdZV oSY;w ,aM daiuls'ku dh tks MsfQus'ku nh x;h gS mlds vuqlkj /kkjk 20&th ds rgr cktkj ewY; ds vo/kkj.k ds fy, tks eki naM fu/kkZfjr fd;s x, gSa mlds vuqlkj /kkjk 20, ds v/khu tkjh vf/klwpuk ds izdk'ku dh rkjh[k dks Hkwfe dk tks cktkj ewY; gS ogh ns; gksxkA l{ke vf/kdkjh }kjk /kkjk 20, dh foKfIr fnukad 16-03-2009 dks tkjh dh x;hA C;koj uxj ikfydk lhek ds rgr o jftLVªs'ku foHkkx }kjk tks Mh ,y lh jsV r; dh x;h gS mlds vuqlkj pkax fprkj jksM nkeksnj nkl jkBh ekxZ dh lMd ds ikl O;kolkf;d nj 700 :i;s izfr oxZ QhV crkbZ x, gS fu;ekuqlkj ifjoknh 700 :i;s izfr oxZ QhV ds fglkc ls Hkwfe dk eqvkotk ikus dk vf/kdkjh gSA bldh x.kuk ds ckn tks jkf'k vkrh gS mldk 60 izfr'kr jkf'k tksMdj ifjoknh dks nh tk,A jsyos ,DV 2008 dh /kkjk 20 ,p ¼5½ esa 9 izfr'kr okf"kZd nj ls C;kt dh Hkh O;oLFkk dh gSA ifjoknh ds odhy us bl fo"k; ij 2007 ,llhlh i`"B 462] 2010 ¼1½ vkjvkjVh i`"B 426 esa izdkf'kr n`"VkUr Hkh is'k fd;s gSA bu izko/kkuksa ds vuqlkj foyEc ls eqvkotk vnk djus ds dkj.k ifjoknh fu;ekuqlkj C;kt Hkh ikus ds vf/kdkjh gSaA l{ke vf/kdkjh ,oa mi[kaM vf/kdkjh mDr of.kZr u;h nj o C;kt dh x.kuk dj la'kksf/kr vokMZ tkjh djsA tgka rd ifjoknh n~okjk fookg lekjksg LFky 20]000@& :i;s dh yht MhM ij fn, tkus dk iz'u gS blds ckjs esa ;|~fi ifjoknh us jftLVMZ yht MhM ekpZ 2008 dks izLrqr dh gS ,oa fudV Hkfo"; esa ifjoknh dks tks gkfu gksuh gS mldk Hkh LVsVesaV is'k fd;k gSA ijUrq bl ij vU; dksbZ nLrkost izLrqr ugha fd;s x, gSa ,oa mi[kaM vf/kdkjh C;koj us bl fo"k; ij viuk dksbZ fu"d"kZ Hkh ugha fn;k gS blfy, l{ke v/khuLFk U;k;ky; mi[kaM vf/kdkjh bl fo"k; ij nksuksa i{kdkjksa dks lquus ,oa nLrkost izLrqr djus dk volj nsus ds ckn mi;qDr fu.kZ; ysaA 7. That the Respondent No. 1 preferred objections under section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as `the Act of 1996) before the District Judge, Ajmer, on 22.9.2012, the same were transferred for adjudication to the Additional District Judge No. 1 Ajmer and it was registered on 29.9.2012 as Civil Miscellaneous Matter No. 33/2012(221/2012) wherein vide impugned order dated 22.12.2016, it was partly allowed and matter was remitted back after quashing the award of Arbitrator dated 7.9.2012 for passing a fresh order which is under challenge in this appeal. 8. Mr. Sanjeev Arora, learned counsel appearing for the appellants submits that the impugned order passed by the court below is out of purview of Section 34 of the Act of 1996. He submits that learned court below dealt with the objections as if it is deciding the appeal which is not permissible. He further submits that no other DLC rate nearer to the date of publication or of the date of publication of notification was filed by the opposite party No.1 and in the date of publication of the notification on 25.5.2009 and date of DLC dated 26th August, 2009, there is no big difference. DLC rate as on 26th August, 2009 was Rs. 700/- per sq. feet and the notification date is 25.5.2009 and considering the DLC rate of 26th August, 2009, learned Arbitrator awarded considering rate of 700/- per sq. feet which cannot be said to be an illegality rather patent illegality. He further submits that even if it is assumed that the said finding is erroneous then also since it is as per government record, it cannot be a ground for setting aside the award. He contended that regarding the two applications, the respondents could have raised his objections at the time of final hearing but he did not raise any objection, therefore, in view of provisions of Section 4 of the Act of 1996, it will be presumed that respondent No.1 has waived his right, therefore, it also cannot be made a ground for setting aside the award. He submitted that without considering all these facts, the learned court below wrongly set aside the award of arbitrator and remanded the matter for fresh decision. He submitted that without considering all these facts, the learned court below wrongly set aside the award of arbitrator and remanded the matter for fresh decision. He submits that documents for which the application was submitted was already considered by the Arbitrator, therefore, no prejudice was caused to respondent No.1 by not considering the application and another application which was filed for review was not maintainable before the Arbitrator because in the Act of 1996, the arbitrator has no power to review its orders and without any statutory powers, the arbitrator cannot review its orders. In support of his submissions, he has relied on the following judgments:- 1. Kinnari Mullick and Ors. vs. Ghanshyam Das Damani, 2017 0 AIR (SC) 2785 2. State of Orissa vs. Samantary Constn. Pvt. Ltd. and Ors. 2015 8 Supreme 757 3. Swan Gold Mining Ltd. Vs. Hindustan Copper Ltd., 2015 5 SCC 739 4. M/s. Navodaya Mass Entertainment Ltd. Vs. M/s. J.M. Combines 2015 5 SCC 698 5. Ranjeet Bafna vs. Kotak Mahendra Bank Ltd., 2015 1 RLW (Raj.) 354 (6) State & Anr vs M/S Gopal Ram Gumani Ram, 2017 2 DNJ 823 (7) P.R. Shah, Shares and Stock Broker (P) Ltd. vs. B.H.H. Securities (P) Ltd. and Ors., 2012 1 SCC 594 (8) Board of Control For Cricket In India Versus Kochi Cricket Pvt. Ltd. And Etc., 2018 0 Supreme (SC) 235 9. On the other hand, learned counsel appearing for respondent No.1 Mr. P.C. Sharma supported the impugned order and submitted that without any basis, the learned Arbitrator directed the competent authority to calculate the rate of land @ Rs. 700/- per sq. feet and also failed to decide the dispute regarding the lease amount of Rs. 2 lacs per month and matter was remitted back to the competent authority whereas he has no authority to do so. He further submits that the applications for summoning the documents and review were also kept pending by the Arbitrator and without deciding the applications, he awarded the compensation which is not sustainable. Shri Sharma submits that court below while deciding the objections under Section 34 of the Act of 1996 has all powers for remanding the matter to the competent authority i.e. SDO because after passing the award, the arbitrator becomes functus officio, therefore, he cannot remand the matter. Shri Sharma submits that court below while deciding the objections under Section 34 of the Act of 1996 has all powers for remanding the matter to the competent authority i.e. SDO because after passing the award, the arbitrator becomes functus officio, therefore, he cannot remand the matter. In support of his submission he relied on the judgment of Delhi High Court in Bharat Sanchar Nigam Ltd. Versus Renewable Energy System LTD & ORS, 2009 (161) DLT 247 wherein it has been held as under: 15. I am respectively bound by the aforesaid dicta of the Division Bench. Similarly, the Division Bench of the Kerala High Court in Sulaikha Clay Mines Vs Alpha Clays AIR 2005 Kerala 3 held while setting aside an award for procedural violation the court is empowered under Section 34(4) of the Act to also change the arbitrator. I may add that I have also in Union of India Vs Modern Laminators Ltd held that the court is empowered in dealing with an application under Section 34 of the Act to not only remit the matter back but also to modify the award. 16. In the present case also I find that several disputed questions of fact will be entailed in quantification of damages losses and determination thereof is in sole domain of arbitrators and cannot be left to the committee proposed. From the findings of the arbitrator as summarized herein above and to which there is no challenge, it cannot be said that the present is a case of no losses having been suffered by RESL/Bank. In the aforesaid circumstances the objections of BSNL are not found sustainable and accordingly OMP No. 174/2004 is dismissed. Consequently, OMP.No.184/2004 insofar as seeking remission of the matter to the arbitrator is concerned has to be allowed. 10. I have considered the submissions at Bar. 11. Before proceeding with the matter, it would be relevant to deal with the case law cited by learned counsel for the appellant: 12. In Kinnari Mullick and Ors. vs. Ghanshyam Das Damani (supra), the larger Bench of Hon’ble Supreme Court while considering the scope of Section 34 of the Act of 1996, held as under: 12. In this backdrop, the question which arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law? vs. Ghanshyam Das Damani (supra), the larger Bench of Hon’ble Supreme Court while considering the scope of Section 34 of the Act of 1996, held as under: 12. In this backdrop, the question which arises is: whether the highlighted portion in the operative part of the impugned judgment of the Division Bench can be sustained in law? For that, we may advert to Section 34(4) of the Act which is the repository of power invested in the Court. The same reads thus: “Section 34..........… (4). On receipt of an application under Sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.” 13. On a bare reading of this provision, it is amply clear that the Court can defer the hearing of the application filed Under Section 34 for setting aside the award on a written request made by a party to the arbitration proceedings to facilitate the Arbitral Tribunal by resuming the arbitral proceedings or to take such other action as in the opinion of Arbitral Tribunal will eliminate the grounds for setting aside the arbitral award. The quintessence for exercising power under this provision is that the arbitral award has not been set aside. Further, the challenge to the said award has been set up under Section 34 about the deficiencies in the arbitral award which may be curable by allowing the Arbitral Tribunal to take such measures which can eliminate the grounds for setting aside the arbitral award. No power has been invested by the Parliament in the Court to remand the matter to the Arbitral Tribunal except to adjourn the proceedings for the limited purpose mentioned in Sub-Section 4 of Section 34. This legal position has been expounded in the case of McDermott International Inc. (supra). In paragraph 8 of the said decision, the Court observed thus: “8..... parliament has not conferred any power of remand to the Court to remit the matter to the arbitral tribunal except to adjourn the proceedings as provided under Sub-section (4) of Section 34 of the Act. (supra). In paragraph 8 of the said decision, the Court observed thus: “8..... parliament has not conferred any power of remand to the Court to remit the matter to the arbitral tribunal except to adjourn the proceedings as provided under Sub-section (4) of Section 34 of the Act. The object of Sub-section (4) of Section 34 of the Act is to give an opportunity to the arbitral tribunal to resume the arbitral proceedings or to enable it to take such other action which will eliminate the grounds for setting aside the arbitral award.” (Emphasis supplied) 14. In any case, the limited discretion available to the Court Under Section 34(4) can be exercised only upon a written application made in that behalf by a party to the arbitration proceedings. It is crystal clear that the Court cannot exercise this limited power of deferring the proceedings before it suo moto. Moreover, before formally setting aside the award, if the party to the arbitration proceedings fails to request the Court to defer the proceedings pending before it, then it is not open to the party to move an application Under Section 34(4) of the Act. For, consequent to disposal of the main proceedings Under Section 34 of the Act by the Court, it would become functus officio. In other words, the limited remedy available Under Section 34(4) is required to be invoked by the party to the arbitral proceedings before the award is set aside by the Court. “But under the 1996 Act, the Court has only two sets of powers after the award is pronounced viz., (i) to set aside the award Under Section 34(2); or (ii) to adjourn the proceedings to enable the arbitral tribunal to resume the proceedings or take such other action as in the opinion of the tribunal will eliminate the grounds for setting aside the arbitral award.” 12.2. In State of Orissa vs. Samantary Constn. Pvt. Ltd. and Ors.(supra), the Hon’ble Supreme Court held thus:- 17. Undoubtedly, the award of the Arbitrator may not be interfered with on the ground that the same was erroneous or on the ground that a different view could be taken on merits of the controversy. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference. In considering an objection to the award, the Court does not sit in appeal over the decision on merits. However, patent error or perversity could certainly provide basis for interference. 12.3 In United India Insurance Company vs. Kishan Singh and Co. Pvt. Ltd. and Ors., the Hon’ble Supreme Court observed as under: “Parties have entered into concluded contract, agreeing terms and conditions of contract which was finally acted upon. In such a case, the parties to contract cannot back out and challenge award on the ground that the same is against public policy. Even assuming the ground available to the appellant, the award cannot be set aside as because it is not contrary to fundamental policy of Indian law or against the interest of India or on ground of patent illegality. High Court has rightly come to conclusion that no ground exists for setting aside award as contemplated under Section 34 of the Act.” 12.4. Further, in Navodaya Mass Entertainment Ltd. vs. JM Combines (supra), the Hon’ble Supreme Court observed as under: 6. In our opinion, the scope of interference of the court is very limited. Court would not be justified in reappraising the material on record and substituting its own view in place of the arbitrator's view. Where there is an error apparent on the face of the record or the arbitrator has not followed the statutory legal position, then and then only it would be justified in interfering with the award published by the arbitrator. Once the arbitrator has applied his mind to the matter before him, the court cannot reappraise the matter as if it were an appeal and even if two views are possible, the view taken by the arbitrator would prevail. 12.5. In Ranjeet Bafna vs. Kotak Mahendra Bank Ltd., the court observed as under: In such proceedings u/S. 34, the Court does not act as an appellate Court and where an award passed by Arbitrator is a reasoned one not contrary to any substantive provisions of law or terms of the contract or perverse to the evidence on record or not ex-facie indicative of non-application of mind or is not in contravention of principles of natural justice or is not palpably illegal, cannot be set aside. 12. 6. This Court in State & Anr vs M/S Gopal Ram Gumani Ram (supra), observed as under: 10. 12. 6. This Court in State & Anr vs M/S Gopal Ram Gumani Ram (supra), observed as under: 10. A bare perusal of Section 34 of the Act, it is clear that award can be set aside only if any one of the five grounds as contained in Section 34(2)(a) or any one of two grounds as contained in Section 34(2)(b) of the Act exist. 11. Learned Court below also noticed that the award is a reasoned one and based on due appreciation of evidence on record after affording sufficient opportunity to State Govt. In considered opinion of this Court, the appellants had failed to make out any ground under Section 34 of the Act of 1996 before the learned court below for setting aside the award, which is a well considered and reasoned order and liable to be upheld. 13. It is thus clear that the court hearing an application under Section 34 of the Act of 1996 does not act as an appellate court and where an award passed by an Arbitrator is a reasoned one not contrary to any substantive provisions of law or terms the contract or perverse to the evidence on record or not ex facie indicative of non-application of mind or is not in contravention of principles of natural justice or is not palpably illegal, it cannot be set aside. 12.7. Further in P.R. Shah, Shares and Stock Broker (P) Ltd. vs. B.H.H. Securities (P) Ltd. and Ors. (supra), it has been observed as under: A court does not sit in appeal over the award of an arbitral tribunal it cannot appreciate and re-appreciate the facts to find out whether a different decision could be arrived at. 12.8. In Board of Control For Cricket In India Versus Kochi Cricket Pvt. Ltd. And Etc.(supra), the Court observed as under: Provision should first be construed literally, then purposively and pragmatically keeping the object of the provision in mind. 13. At this stage, learned counsel Mr. 12.8. In Board of Control For Cricket In India Versus Kochi Cricket Pvt. Ltd. And Etc.(supra), the Court observed as under: Provision should first be construed literally, then purposively and pragmatically keeping the object of the provision in mind. 13. At this stage, learned counsel Mr. Sharma appearing for respondent No.1 submits that judgment of larger bench of the Supreme Court in Kinnari Mullick (supra) is in persona which is not binding precedent and the Larger Bench of the Supreme Court did not decide the question and it was kept open for decision by the Division Bench but from the perusal of the aforesaid observations of the Supreme Court wherein the Hon’ble Supreme Court considered the provision enshrined under Section 34 clause (4) of the Act of 1996 clearly observed that while exercising powers under Section 34 of the Act of 1996, Court has no power to remand the matter and has confirmed these orders. Therefore, in view of decision of Hon’ble Supreme Court, learned court below has no power to remand the matter back. 14. So far as rate of acquired land is concerned, it is a factual aspect which is decided on the basis of DLC rate as per observations of the Arbitrator which cannot be interfered. Further, it cannot be considered as patent illegality. So far as two applications are concerned, one is regarding review, since arbitrator has no power for review, therefore, if the application is not decided even then no prejudice is caused to respondent No.1 and another application is regarding filing the documents, since documents have already been considered by the arbitrator, therefore, that application also does not affect the rights of respondent No.1. Not only this, Section 4 of the Act of 1996 reads as under: 4.Waiver of right to object A party who knows that— (a) any provision of this Part from which the parties may derogate, or (b) any requirement under the arbitration agreement, has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a time limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object. 15. 15. Since at the time of final hearing before the Arbitrator, respondent No.1 did not raise any objection regarding the aforesaid two applications, therefore, according to aforesaid provision enshrined under Section 4 of the Act of 1996, it is to be presumed that he waived his right. 16. In the case in hand also, the objections raised by respondent No.1 are regarding the facts on which after considering documents available on record and arguments advanced by learned counsel for respondent No.1, learned arbitrator decided the rate of acquired land @ 700 per sq. feet and directed the competent authority to calculate the compensation considering the said rate. Since the competent authority failed to consider/decide the objections raised by the appellants regarding lease amount of Rs. 2 lac per month for that he directed the competent authority to decide the objection on the basis of available material on record after giving opportunity to both the parties which does not require any interference. 17. So far as directions of arbitrator to competent authority is concerned for which learned counsel Shri Sharma relied on Section 28 clause 1(a) which reads as under: Section 28 - Rules applicable to substance of dispute (1) Where the place of arbitration is situate in India,— (a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India 18. Since the arbitrator has power to pass the award on the dispute referred to him for compensation and since lease amount was not decided by the competent authority, therefore, same may also be decided. Considering all these fats, learned arbitrator decided the rate of acquired land and directed the competent authority to decide the dispute regarding lease amount as per Section 28-1(a) of the Act of 1996 that was in his jurisdiction and the same also does not require any interference. 19. In view of the above, the appeal deserves to be accepted and the same is allowed. The impugned order dated 22.12.2016 is quashed and set aside. 20. It is made clear that in case respondent No.1 feels aggrieved by the order of the competent authority regarding calculation and lease amount, it will be open for him to raise objections according to law. There shall be no order as to costs.