JUDGMENT G. P. Mathur, J. - This appeal has been preferred against the judgment and order dated 25-4-1990 of Civil Judge, Allahabad given in proceedings under Section 20 of the Arbitration Act by which the defendant-appellant Union of India has been directed to refer Claim Nos. 1 to 11 to the Sole Arbitrator to be appointed by it who should be an Engineer Officer outside the department. 2. The case of the plaintiff-respondent in brief is as follows. The plaintiff is a registered partnership firm and is doing construction business. The defendants No. 3-Chief Engineer, Lucknow Zone M.E.S. invited tenders for special repairs at C.O.D. Chheoki Allahabad. The tender submitted by the plaintiff was accepted on 7-9-1982 and the plaintiff completed the work as per terms and conditions of the agreements and the general terms and conditions of the contract within the stipulated time i.e., 30-9-1983. The defendant No. 3 did not pay full amount to the plaintiff as claimed by it. In para 9 of the plaint the details of the various items of disputes have been enumerated. In spite of several letters and reminders the Engineer-in-Chief, Army Head Quarters, defendants No. 2 who is the person to appoint an Arbitrator as per terms of the contract failed to appoint an Arbitrator for setting the claim of the plaintiff and, therefore, the necessity of filing a petition under Section 20 of the Arbitration Act arose. The relief claimed in the plaint is that the defendants be directed to file the original agreement of contract entered between the plaintiff and defendant No. 1 at Lucknow for the work to be done at C.O.D., Chheoki, Allahabad and further the Court may appoint an Arbitrator or the defendant be directed to appoint an Arbitrator to settle the dispute. 3. The defendants filed a written statement and their case is as follows : The plaintiff executed the contract work phasewise after taking extension of time. The plaintiff submitted some extra claims which were fake and it was never asked to do any such work and therefore, the bills were finalised after rejecting the fake claims. The plaintiff was asked to sign the final bills but its representative failed to turn up to complete the formalities. Accordingly the final bill of the plaintiff was passed by C.D.A., Central Command, Meerut and it was asked to take payment. The plaintiff was asked to sign the final bills but its representative failed to turn up to complete the formalities. Accordingly the final bill of the plaintiff was passed by C.D.A., Central Command, Meerut and it was asked to take payment. The plaintiff, however, did not turn up and the final bill has been kept under deposit and as such there is no dispute regarding disbursement of the amount. In para 8 of the written statement, it is pleaded that in accordance with Condition 70 of General Conditions of Contract which forms part of the agreement, Claim Nos. 4 to 11 of the plaintiff has been referred to the Sole Arbitrator Mr. R. J. Kumareson, Chief Surveyor of Works by the Engineer-in-Chief, Army Head Quarters, New Delhi vide his letter dated 6th September, 1988. The Claim Nos. 1, 2 and 3 were not referred to the Arbitrator as the decision thereon had been given by the Commander Works Engineer and Chief Engineer, Lucknow under the powers vested in him in terms of the agreement. It is further pleaded that no cause of action has accrued to the plaintiff to file the suit and the plaintiff is not entitled to any relief. 4. The learned Civil Judge framed 5 issues. He held that there being a provisions for appointment of Arbitrator in the agreement, an Arbitrator should be appointed. On Issue No. 2 it was held that it was not proper to appoint a non-Engineer as an Arbitrator and consequently a retired Judge cannot be appointed as an Arbitrator. On Issue No. 3 it was held that Claim Nos. 1 to 3 are also to be referred for arbitration. On these findings the suit was decreed with a direction to the defendant to refer Claims Nos. 1 to 11 to an Engineer Officer outside his department for arbitration. 5. The principal submission of learned Counsel for Union of India (defendant No. 1) is that after filing of the plaint but before the notice thereof had been received by the appellant, an Arbitrator had been appointed and therefore, the suit had become infructuous and the same was lable to be dismissed. 5. The principal submission of learned Counsel for Union of India (defendant No. 1) is that after filing of the plaint but before the notice thereof had been received by the appellant, an Arbitrator had been appointed and therefore, the suit had become infructuous and the same was lable to be dismissed. In this connection it may be noticed that the suit was filed on 10-5-1988 on which date the learned Civil Judge passed an order registering the same and issuing summons to the defendants fixing 2-11-1988 for filing of written statement and 14-11-1988 for framing of issues. In the written statement, which was filed on 2-5-1989, it was pleaded in para 8 that Engineer-in-Chief, Army Head Quarter, New Delhi, vide his letter No. 13600/CC/445/E 8 dated 6th September, 1988 had referred Claims Nos. 4 to 11 of the plaintiff for arbitration to Mr. R. J. Kumareason, Chief Surveyor of Works. The record of the Trial Court shows that on 16-11-1988 the plaintiff-respondent Vidyawati Construction Co. moved an application stating that a reference had been made to Mr. R. J. Kumareson, Chief Surveyor of Works, vide letter dated 6-9-1988 but the whole dispute had not been referred to him and that Mr. Kumareson (Arbitrator) had issued a letter dated 25-10-1988 to the plaintiff to file claim before him by 30-11-1988 and as the whole dispute had not been referred to the Arbitrator an injunction be issued restraining the Arbitrator not to proceed with the case till further orders of the Court. After hearing Counsel for the plaintiff, the learned Civil Judge passed an order dated 30-11-1988 that the Arbitrator Mr. R. J. Kumareson may give his award on the claims made by the plaintiff which had been enumerated in para 9 of the plaint and in case the defendants, Union of India, had any objection to such a course of action, the Arbitrator may stay the proceedings till further orders of the Court. By the same order Court issued notice to the defendants fixing 15-2-1989 for objections. 6. The question which requires consideration is whether on the facts of the case the learned Civil Judge was justified in decreeing the plaintiff's suit and in issuing directions to the defendants to refer the dispute for arbitration to an Engineer Officer outside his department. By the same order Court issued notice to the defendants fixing 15-2-1989 for objections. 6. The question which requires consideration is whether on the facts of the case the learned Civil Judge was justified in decreeing the plaintiff's suit and in issuing directions to the defendants to refer the dispute for arbitration to an Engineer Officer outside his department. The plaintiff had filed the petition under Section 20 of the Arbitration Act hereinafter referred to as the Act) and the requisite conditions for maintaining such an application are (i) there is a valid and subsisting agreement between the parties, (ii) such agreement was entered into between the parties before institution of a suit with respect to the subject matter of the agreement or any part of it, (iii) a difference to which the agreement applies has arisen, and (iv) the application is made to a Court having jurisdiction in the matter to which the agreement relates see Wazir Chandra Mahajan v. Union of India (A.I.R. 1967 S.C. 990). In the present case the reference to Arbitrator has been made shortly after filing of the suit and before notice thereof had been served upon the defendants. The record further shows that the Arbitrator who had been appointed had entered upon the reference and had issued a letter dated 25-10-1988 asking the plaintiff to file claim before him by 30-11-1988 and on 16-11-1988 the plaintiff moved an injunction application before the Civil Judge with a prayer to restrain the Arbitrator from proceeding with the matter. Thus there can not be a slightest doubt that soon after filing of the plaint a reference to Arbitrator had been made and the Arbitrator so appointed had entered upon the reference and had also issued notices to the parties. Thus there can not be a slightest doubt that soon after filing of the plaint a reference to Arbitrator had been made and the Arbitrator so appointed had entered upon the reference and had also issued notices to the parties. Section 20 of the Act has been amended by U.P. Act No. 513 of 1976 which came into effect on 1-1-1977 and Sub-section (1) of Section 20 after amendments reads as under : "Section 20(1) : Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them instead of proceedings under Chapter II, may apply to a Court, having jurisdiction in the matter to which the agreement relates, that a reference be made according to the agreement." In Jupiter Chit Funds v. Dwarika Dhees Dayal (A.I.R. 1981 Alld. 257), a learned Single Judge of this Court after relying upon an earlier Full Bench decision in Mangal Prasad v. Lakshman Prasad (A.I.R. 1968 Alld. 108), has held that an application can be moved under sub-section (1) of Section 20 before a reference has been made to the arbitration or the latter has entered in the reference and that no application can be made under this Section where a reference has already been made to Arbitrator and he has entered upon the reference but for some reason has not proceeded with the same. In W.B.E.C.S. Corporation v. M/s. I.T. Corporation (A.I.R. 1984 Cal. 313 = 1985 Arb. LR 111), a Division Bench has held that where an Arbitrator had already been appointed, the application under Section 20 of the Act would not be maintainable, for in such a case the Court would have nothing to do in the matter. In Vijay Singh Amar Singh v. Hindustan Zink Ltd. (AIR 1992 Rajasthan 82), the Trial Court, on being informed by the respondent that an Arbitrator had already been appointed in terms of the agreement, disposed of the application under Section 20 without passing any order. The High Court approved such an order holding that when the Arbitrator has been appointed in terms of the agreement, the proceedings under Section 20 do not survive and have to be disposed of without passing any order. In Build India Construction Co. The High Court approved such an order holding that when the Arbitrator has been appointed in terms of the agreement, the proceedings under Section 20 do not survive and have to be disposed of without passing any order. In Build India Construction Co. v. Union of India (I.L.R. 1970(2) Cal. 127), it has been held that the application is not maintainable when a reference has already been made during the pendency of the application and in the ends of justice a direction was issued that the agreement be filed in Court and the Arbitrator to proceed with the reference. In the present case, conditions requisite for filing of the petition under Section 20 of the Act were fully satisfied and therefore, the petition was maintainable. However as a reference was made to the Arbitrator soon after filing of the petition and even before notice had been served upon the defendants, the relief which the plaintiff had sought in the suit had already been granted. Therefore, in such circumstances the proper course for the Court was not to proceed further in the case and in the interest of justice the Court could ask the Arbitrator to proceed with the reference for adjudication of dispute relating to agreement. The learned Civil Judge erred in not adopting such a course of action after it had been brought to his notice even by the plaintiff himself that the Engineer-in-Chief had appointed Mr. R. J. Kumareson, Chief Surveyor Works as Arbitrator vide letter dated 6-9-1988 and therefore, the order passed by him cannot be sustained. 7. Mr. A. K. Sinha learned Counsel for the appellant has next contended that the direction issued by the learned Civil Judge that an Engineer Officer outside the department be appointed as Arbitrator is wholly illegal and such a direction cannot be issued in proceedings under Section 20 of the Act. 7. Mr. A. K. Sinha learned Counsel for the appellant has next contended that the direction issued by the learned Civil Judge that an Engineer Officer outside the department be appointed as Arbitrator is wholly illegal and such a direction cannot be issued in proceedings under Section 20 of the Act. Sub-section (4) of Section 20 after its amendment by U.P. Act No. 57 of 1976 reads as follows : "Section 20(4) : Where no sufficient cause is shown, the Court shall make an order of reference to the Arbitrator appointed by the parties, whether in the agreement or otherwise, or where the parties cannot agree upon an Arbitrator to an Arbitrator appointed by the Court." The Language of Sub-section (4) of Section 20 is quite clear and the reference has to be made to an Arbitrator appointed by the parties in the agreement or otherwise. Condition No. 70 of general conditions of contracts which forms part of the agreement rentered into by the parties reads as follows : "All disputes, between the parties to the contract (other than those for which the decision of the C.W.E. or any other person is by the Contract expressed to be final and binding) shall, after written notice by either party to the Contract to the other of them, be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. Unless ......................... Provided ....................... Provided ....................... If the Arbitrator so appointed resigns his appointment or vacates his office or is unable or unwilling to act due to any reason whatsoever, the authority appointing him may appoint a new Arbitrator to act in his place." The aforesaid condition of the contract shows that all disputes shall be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. It has been held in Fertiliser Corporation of India v. De Installation (A.I.R. 1970 All. 31), that the Court shall proceed to make a reference firstly to the Arbitrator appointed by the parties in the agreement. In Union of India v. Prafull Kumar Sanyal (A.I.R. 1979 S.C. 1457), it has been observed that the Court shall make an order of reference to the Arbitrator appointed by the parties whether in the agreement or otherwise. 31), that the Court shall proceed to make a reference firstly to the Arbitrator appointed by the parties in the agreement. In Union of India v. Prafull Kumar Sanyal (A.I.R. 1979 S.C. 1457), it has been observed that the Court shall make an order of reference to the Arbitrator appointed by the parties whether in the agreement or otherwise. In view of condition No. 70 the parties had agreed that the dispute shall be referred to the sole arbitration of an Engineer Officer to be appointed by the authority mentioned in the tender documents. The direction of the learned Civil Judge that reference be made to an officer outside the department is not contemplated by Clause 70 and therefore, it has to be set aside. 8. In this connection it will be useful to refer to the Explanation which has been inserted at the end of Section 20 by U.P. Act No. 57 of 1976 which reads as follows : "Explanation to Section 20 : Where the Arbitration agreement provides for reference to a person by name or designation, the fact that the Arbitrator or the Umpire so named or designated, is an employee of, or is otherwise connected with one of the parties, shall not by itself be deemed to be a reason for not referring the matter to the Arbitrator or the Umpire so named or designated." In view of the aforesaid provision, the learned Civil Judge went wrong in issuing a direction for a reference being made to an officer outside the department and the same is clearly illegal. Learned Counsel for the appellant has submitted that subsequent to the passing of the impugned order a reference was made to one Mr. Khare who is a retired Chief Engineer of P.W.D., learned Counsel has urged that in view of the mandate of Clause 70, reference could not be made to a retired officer. In Union of India v. M/s. Gupta Sanitary Store (F.A.F.O. No. 317 of 1993 decided on 24-2-1994), a Division Bench while interpreting Clause 70, aforesaid, held that a retired person cannot be appointed as an Arbitrator. In Union of India v. M/s. Gupta Sanitary Store (F.A.F.O. No. 317 of 1993 decided on 24-2-1994), a Division Bench while interpreting Clause 70, aforesaid, held that a retired person cannot be appointed as an Arbitrator. In M/s. Pretressed Concrete v. Union of India (I.A. No. 1 of 1991 (SLP (C) 13270/86), the Supreme Court modified an earlier order on the ground that in view of Clause 70 of the agreement a retired officer having vacated his office was not competent to proceed with arbitration proceedings. In view of these authorities, I am in agreement with the contention raised by learned Counsel for the parties that a retired officer could not be appointed as an Arbitrator. 9. Mr. Ravikant learned Counsel for the plaintiff-respondent has submitted that after the order had been passed by the learned Civil Judge a reference was made to Mr. Khare, a retired Chief Engineer of P.W.D., who proceeded with the reference and gave an award on 21-9-1992. The defendant-appellant (Union of India) participated in the arbitration proceedings and did not raise any objection regarding his jurisdiction and therefore, it is not open to the appellant to contend that Mr. Khare had no authority or jurisdiction to enter upon the reference and give an award. Learned Counsel has further urged that the Union of India having not challenged the award by taking appropriate legal proceedings, the award given by Mr. Khare is binding upon the defendants. In support of this proposition reliance has been placed upon Neel Kanta and Brothers v. Superintending Engineer, National Highways (A.I.R. 1988 S.C. 2015 = 1989(1) Arb. LR 34), and Tarapore and Company v. State of M.P. ( 1994(3) S.C.C. 521 = 1994(1) Arb. LR 341). 10. In my opinion, contention raised by learned Counsel has no substance. Once a reference had been made by the learned Civil Judge to Mr. Khare the defendant-appellants had no option but to participate in the proceedings. If they had not done so, they would have taken the risk of an ex-parte award being made against them. LR 341). 10. In my opinion, contention raised by learned Counsel has no substance. Once a reference had been made by the learned Civil Judge to Mr. Khare the defendant-appellants had no option but to participate in the proceedings. If they had not done so, they would have taken the risk of an ex-parte award being made against them. The plaintiff cannot contend that the defendants, Union of India and others, had either acquiesced to or submitted to the order dated 25-4-1990 passed by the learned Civil Judge as they filed the present appeal against the said order in the High Court within limitation and also moved a stay application praying that the operation of the order passed by the learned Civil Judge be stayed. There was nothing more which the appellant could do in the matter. In these circumstances it cannot be held that the appellant had either acquiesced to the jurisdiction of Mr. Khare or had waived their right to challenge his jurisdiction to give an award. Regarding the second contention suffice it to say that the authority of Mr. Khare to enter upon the reference and make an award is founded upon the order passed by the Civil Judge on 25-4-1990 and the consequent reference made to him by the Court. Once the order dated 25-4-1990 is found to be illegal and is set aside, all proceedings taken in pursuance there of will fall automatically. The authority of an Arbitrator is found upon a valid reference of dispute and a valid appointment. If the reference of dispute and the appointment of Arbitrator are found to be invalid the award so given can not stand and will automatically go. A contention similar to that raised here by the plaintiff was repelled by the Supreme Count in Government of Andhra Pradesh v. K. Mastan Rao (A.I.R. 1994 S.C. 490 = 1994(1) Arb. LR 177), with the following observations : "As a result of this judgment, the award made by the Sole Arbitrator being dependent on the impugned judgment which are being set aside, automatically stand set aside and accordingly the same will now be ignored ....." 11. Lastly it was urged that all the items of dispute had not been referred to Mr. R. J. Kumareson. Lastly it was urged that all the items of dispute had not been referred to Mr. R. J. Kumareson. In terms of Clause 70 only disputes other than those for which the decision of the C.W.E. or any other person is by the contract expressed to be final and binding, have to be referred. Learned Counsel has not been able to point out any such dispute for which the decision of C.W.E. was not final and binding which had not been referred by the order of the Engineer-in-Chief dated 6-9-1988. Thus the reference made to Mr. R. I. Kumareson was perfectly. 12. In the result, the appeal succeeds and is hereby allowed. The judgment and order dated 25-4-1996 of Civil Judge, Allahabad in O.S. No. 332 of 1988 is set aside. Any further proceedings taken in pursuance of the aforesaid order including the award shall stand set aside. Mr. R. J. Kumareson, Chief Surveyor of Works, who has been appointed as Arbitrator by the Engineer-in-Chief, Army Head Quarter by the order dated 6-9-1988, shall proceed with the reference and give an award. It Mr. R. J. Kumareson has vacated his office, it will be open to Engineer-in-Chief, Army Head Quarter to make a reference to another Engineer Officer in accordance with the terms of the agreement. The appellant will be entitled to cost. Appeal allowed with cost.