JUDGMENT : M.M. Das, J. - The Petitioner has been granted a mining lease over an area of 14.933 hects., which is equivalent to Ac. 36.90 at Raikela village in the district of Sundargarh, the same being an iron ore mining lease. The lease deed was executed between the State of Orissa and the Petitioner in Form 'K' under the M.M & D.R Act- (hereinafter referred to as 'the Act'). The Petitioner was granted mining lease for a period of thirty years. The schedule of the land over which the said mining lease was granted in favour of the Petitioner and mentioned in the lease deed under Annexure-1 is as follows: P. No. Holding Name of the tenants Nature of the land Area in Remark acres 7/P 63 Rakhit Gram Jungle 2.90 Part 517/P 13 Jagabandhu Naik Goda - I 0.90 520/P 51 Raja Dehuri Goda-ll 2.68 580/P 47 Ratna munda Goda-I 0.80 583/P 33 Budhini Amat Goda-ll 1.02 584/P 16 Dasara Dehuri Goda - II 3.20 585/P 63 Rakhit Basti Jogya 0.56 536/P 65 Abad-Jogya Anabadi Jungle 0.65 587 50 Aaibari Panchagai Goda - II 0.36 588 50 -do- -do- 2.35 589-P 63 Rakhit Bast-Jogya 4.38 590/P 63 Rakhit Bad Jungle 9.44 650/P 17 Naratam Mohakud Goda - I 0.02 657/P 39 Bhagabatia Barik Goda-I 1.09 658/P 63 Rakhit Grama Jungle 3.78 659/P 63 Rakhit -do- 0.16 661/P 66 Aoad-ajagya Anabadi Pahar 1.45 662/P 43 Machu Munda Gada-II 0.12 663/P 34 Budhu Naik -do- 0.68 664/P 64 Sarbasadharan Rasta 0.28 664/P 64 Sarbasadharan Rasta 0.28 668/P 47 Ratana Munda Goda - II 0.30 782/P 51 Raja Dehuri Goda - II 0.18 788/P 51 -do- -do- 0.32 Total: 36.90 Acres Subsequent to the execution of the mining lease by Order Dated 16.2.1982 under Annexure-2 to the Writ Petition, the Collector, Sundargarh granted permission for surface operation to the Petitioner over an area of Ac.9.37 decimals. As per the land schedule given in the said order under Annexure-2, it would be found from the same that four plots being plot Nos. 586(P), 589(P), 658(P) and 585(P) constitute the area over which surface operation was permitted. It is stated by the Learned Counsel for the Petitioner that the Petitioner has been regularly depositing the royalty as per Section 9 of the Act and also has been paying the dead rent. 586(P), 589(P), 658(P) and 585(P) constitute the area over which surface operation was permitted. It is stated by the Learned Counsel for the Petitioner that the Petitioner has been regularly depositing the royalty as per Section 9 of the Act and also has been paying the dead rent. The Petitioner also states that he has been operating the said mines and carrying on mining activities which is confined to the area over which surface right has been granted for the last 23 years without any let or hindrance or any allegation/complaint made against him. 2. At this juncture, the Mining Officer, Koira, Sundargarh-Opposite Party No. 4, on instruction of the Deputy Director of Mines-Opposite Party No. 3, passed an order on 1.7.2005 directing the Petitioner to stop all the mining activities within the area of his mining lease. Subsequent to passing of the said order for stopping mining operation on 1.7.2005, the Petitioner has not been issued with necessary permit for lifting the iron ore already extracted and stored from and on his mining area. 3. Being aggrieved, the Petitioner approached this Court in W.P.(C) No. 10615 of 2005 challenging the said Order Dated 1.7.2005 under Annexure- 4 to the present Writ Petition. During hearing of the said Writ Petition, on 18.9.2005, as it appeared that the Petitioner has made representations under Annexures-6 and 7 to the said Writ Petition, to the Deputy Director of Mines, this Court on that day, i.e., on 18.9.2005 disposed of the said Writ Petition with a direction upon the Deputy Director of Mines, Koira Circle, to look into the grievance of the Petitioner as made in his representations and to clarify what the department intends under Annexure-5 to the said Writ Petition, after giving opportunity of personal hearing to the Petitioner or his representative. It was further directed to pass a final order on the representations within one week from the date of the order and the Petitioner was directed to produce a certified copy of the said order before the Deputy Director of Mines. This Court, taking into consideration the submissions made on behalf of the Petitioner with regard to lifting of the minerals already extracted observed that if the same shall be brought to the notice of the Deputy Director of Mines while passing the final order, he shall pass order regarding lifting of the said mineral. 4. This Court, taking into consideration the submissions made on behalf of the Petitioner with regard to lifting of the minerals already extracted observed that if the same shall be brought to the notice of the Deputy Director of Mines while passing the final order, he shall pass order regarding lifting of the said mineral. 4. After disposal of the said Writ Petition, as aforesaid, the Deputy Director of Mines by Order Dated 20.9.2005 disposed of the representations holding as follows: As per the orders of the Director of Mining and Geology, Orissa vide his letter No. 9237 dtd. 22.2.91, the resurvey work of the 5 (five) Nos. of adjacent mining lease areas of Shri Shiv Dutt Sharma, Shri S.N. Mohanty, M/s. National Enterprises, M/s. Penguin Trading & Agencies Ltd. and Jindal Strips Ltd. (now Jindal Steel & Power Ltd.) at village Raikela was undertaken by the Government Surveyor in the year 1991 on the basis of the map furnished by the Director of Mining & Geology, Orissa and boundary description appended to the respective mining lease deeds in the order of their dates of execution with reference to the trijunction stone pillar of villages Tantra-Tensa-Raikela established before demarcation. After resurvey of the above mining lease areas at village Raikela, all the mining lease areas of above mines owner Including the Petitioner Shri Shiv Dutt Sharma were shifted from their previous position, and the revised map, boundary description and land schedule of the above mining lease areas including the area of Shri Shiv Dutt Sharma, Petitioner was duly approved by the Director of Mining & Geology, Orissa vide his letter No. 20557 dtd. 24.7.1992. Government of Orissa In Department of Steel & Mines vide their letter No. 1080 dated 04.8.1995 issued instruction to the Collector, Sundargarh that Shri Shiv Dutt Sharma, Sri S.N. Mohanty, M/s. National Enterprises, M/s. Penguin Trading & Agencies Ltd. and Jindal Strips Ltd. (now Jindal Steel & Power Ltd.) may be allowed to re-execute their rectified mining leases over an area of 14.540, 19.587, 45.952, 49.370 and 290.849 hectares respectively for iron ore arrived at after final resurvey and demarcation work. All the above parties were informed by the then Deputy Director of Mines, Koira to attend the office on 20.9.1995 for signing the rectified map, boundary description and land schedule of their respective mining lease areas as a token of acceptance for execution of rectified mining lease deed by the Collector, Sundargarh. Except Shri S.N. Mohanty and M/s. Penguin Trading & Agencies Ltd, who signed on the rectified map, boundary description & land schedule on 20.9.1995 and 30.10.1995 respectively, no other mines owner such as Shri Shiv Dutt Sharma, Petitioner, M/s. National Enterprises and Jindal Strips Ltd (now Jindal Steel & Power Ltd.) signed in the respective rectified map, boundary description and land schedule as a token of acceptance for the rectification of their mining lease deed. As because Shri Shiv Dutt Sharma, Petitioner and other two lessees as said above could not sign the rectified map, boundary description and land schedule, so rectification of mining lease deed of all the above mines owner including Shri Shiv Dutt Sharma, the Petitioner could not be executed. 5. Since Shri Shiv Dutt Sharma, Petitioner has not taken any steps for execution of the rectification of mining lease deed as directed by the State Government and he was undertaking mining operation within the resurveyed mining lease area of M/s. National Enterprises and, hence, the area in operation by the Petitioner Shri Shiv Dutt Sharma is now disputed one, which comes within resurveyed mining lease area of M/s. National Enterprises and the mining lease area of Shri Shiv Dutt Sharma -Petitioner was shifted from its previous position after resurvey was conducted shown in the map enclosed, hence the Mining Officer, Koira on the approval of the Deputy Director of Mines, Koira stopped the mining operation over the disputed portion of the mining lease area of Shri Shiv Dutt Sharma, Petitioner vide letter No. 9272 dtd. 01.7.2005, as per the order of the Director of Mines, Orissa. But the Petitioner Shri Shiv Dutt Sharma is free to work over his resurveyed mining lease area in village Raikela. The Petitioner Shri Shiv Dutta Sharma is intimated the details of his workings over disputed portion and his resurveyed Mining lease area at village Raikela through a map (enclosed herewith). The Deputy Director of Mines, Koira is not the Competent Authority to decide on the mining lease matters in case of disputed area. The Petitioner Shri Shiv Dutta Sharma is intimated the details of his workings over disputed portion and his resurveyed Mining lease area at village Raikela through a map (enclosed herewith). The Deputy Director of Mines, Koira is not the Competent Authority to decide on the mining lease matters in case of disputed area. Government of Orissa in Department of Steel & Mines being the competent authority on mining lease matters may take a final decision in this matter since the Petitioner Shiv Dutt Sharma has not cooperated for execution of the rectification of his mining lease deed as yet, in spite of instructions of the Government. 6. Since the iron ore has been raised from the disputed portion by the Petitioner Shri Shiv Dutt Sharma and mining operation has been stopped over the same disputed portion, therefore, removal permission of iron ore cannot be issued". 7. The said Order Dated 20.9.2005 has been annexed as Annexure-5 series. From the above order under Annexure-5, it appears that it was indicated that as per the order of the Director of Mines, a Geology dated 22.2.1991, the re-survey work of 5 numbers adjacent mining lease areas were undertaken by the Government surveyor in the year, 1991. After resurvey of the said areas, all the mining lease areas of the mine owners indicated in the said order were shifted from their previous position and accordingly revised map, boundary description and the land schedule of mining lease areas were approved by the Director of Mines and Geology, Orissa in his letter dated 24.7.1992. The re-surveyed and demarcated mining lease area of the Petitioner has been indicated in Annexure-5 wherein description of the plot numbers for the purpose of mining operation was also given in the map annexed to the said order. A reading of the said Order Dated 20.9.2005 goes to show that while disposing of the representations of the Petitioner as per direction of this Court, the Deputy Director of Mines has recorded that after re-survey, the mining lease areas including the lease area of the Petitioner were shifted from their previous position. A reading of the said Order Dated 20.9.2005 goes to show that while disposing of the representations of the Petitioner as per direction of this Court, the Deputy Director of Mines has recorded that after re-survey, the mining lease areas including the lease area of the Petitioner were shifted from their previous position. It is further stated that the Government of Orissa in the Department of Steel and Mines by its letter dated 14.8.1995 issued instructions to the Collector, Sundergarh that the Petitioner, Sri S.N. Mohanty, M/s. National Enterprises, M/s. Penguin and Trading Agency Limited and Zindal Strips Limited (now Zindal Steel and Power Limited) may be allowed to re-execute their rectified mining leases. All the parties were informed by the then Deputy Director of Mines to attend the office on 20.9.1995 for signing the rectified map, boundary description and land schedule of their respective mining lease areas as a token of acceptance for execution of rectified mining lease deeds by the Collector, Sundargarh. It has been further noted in the said order that except Shri S.N. Mohanty and M/s. Penguin Trading Associated Limited, no other mine owners including the Petitioner, signed in the respective rectified map etc. For non-signing of the said rectified map, boundary description etc. the rectified mining lease deed could not be executed. As the Petitioner did not sign the above documents with regard to rectification of mining lese area but continued to carry on mining operation within the resurveyed mining lease area of M/s. National Enterprises, the Mining Officer, on approval by the Deputy Director of Mines, stopped the mining operation over the disputed/over lapping area of the mining lease area of the Petitioner and M/s. National Enterprises. 8. It is contended by the Learned Counsel for the Petitioner that the Revenue Inspector of the area submitted a report to the Tahasildar regarding the status of the resurveyed area of the Petitioner wherein it has been found that the re-surveyed plots are cultivable and Gharabari plots Including public road and the area also Included a hamlet belonging to the Scheduled Caste and Scheduled Tribe Communities. The said report has been annexed to the Writ Petition as Annexure-6. Similarly, Dangola Grama Panchayat has also submitted a report on 25.9.2005 indicating the status of the resurveyed plots which were intended to be leased out on executing a revised lease deed by the Petitioner. The said report has been annexed to the Writ Petition as Annexure-6. Similarly, Dangola Grama Panchayat has also submitted a report on 25.9.2005 indicating the status of the resurveyed plots which were intended to be leased out on executing a revised lease deed by the Petitioner. It is further asserted by the Learned Counsel for the Petitioner that the renewal application of M/s. National Enterprises has been rejected by the State Government and that the mining lease granted in favour of the Petitioner is valid up to 2012 and at this juncture, providing a re-surveyed area to the Petitioner without his consent, according to the Petitioner amounts to cancellation or determination of the mining lease without any authority of law. Being aggrieved by the said order passed by the Deputy Director of Mines disposing of the representations of the Petitioner pursuant to the direction Issued by this Court in the previous Writ Petition filed by the Petitioner, the Petitioner has approached this Court under Article 226 of the Constitution seeking to quash the Orders Dated 1.7.2005 under Annexure-4 and 20:9.2005 under Annexure-5 to the Writ Petition and for a direction to the Opp. Parties 1 to 4 to allow the Petitioner to continue his mining activities within the area leased out to him under the mining lease in Annexure-1. 9. The Opp. Parties 1 to 4 have filed a counter affidavit jointly and the Opp. Party No. 5 has filed a separate counter affidavit. In the counter affidavit filed by the Opp. Parties 1 to 4, a stand has been taken that In the original survey, the mining area of the Petitioner was wrongly demarcated, as the trijunction stone of villages Tantra, Tensa and Ralkela was not taken correctly into consideration. It has been further stated that on resurvey, the area of the Petitioner has been shifted downwards and the portion over which the Petitioner was carrying on mining activities has come within the resurveyed mining area of M/s. National Enterprises and since the Petitioner raised minerals from the disputed portion, the mining operation was stopped. It has been further stated that on resurvey, the area of the Petitioner has been shifted downwards and the portion over which the Petitioner was carrying on mining activities has come within the resurveyed mining area of M/s. National Enterprises and since the Petitioner raised minerals from the disputed portion, the mining operation was stopped. However, from the counter affidavit, it appears that the averments made in paragraph-16 of the Writ Petition that the R.I. of Koira has submitted a report to the Tahasildar that the land, which now comes under the resurveyed area of the Petitioner, includes cultivable lands, GHARABARI plots as well as public road and some of the plots are in occupation of Scheduled Caste and Scheduled Tribe persons, who are residing over it with their families as well as a report of the Dangula Grama Panchayat dated 25.9.2005 has indicated the status of those plots as areas included in the village Raikela, has not been denied by the Opp. Parties 2 to 4 in their counter affidavit. Even an additional affidavit was filed by the Opp. Party No. 3, which does not reply to the assertions made by the Petitioner in paragraph-16 of the Writ Petition. The Opp. Party No 5 M/s. National Enterprises, who is also a lessee, in its counter affidavit, has reiterated the stand taken by the Opp. Parties 1 to 4 and has averred that the action of the Petitioner in carrying on mining operation over plot Nos. 585, 586, 587, 589, 657, 658, 659 and 661, which have been included in the resurveyed mining area of Opp. Party No. 5, is wholly illegal, for which the Deputy Director of Mines, Koira under Annexure-4, directed the Petitioner to stop mining operation over the said area. The Opp. Party No. 5 also has not given any reply to the paragraph-16 of the Writ Petition. 10. It appears from the record that the Opp. Party No. 6 M/s. Zindal Steel and Power Ltd. has also filed an affidavit in the form of preliminary counter affidavit, inter alia, stating that though the said Opp. Party has not executed the lease deed in respect of the resurveyed area, but it applied for renewal of the mining lease on which the Opp. Party No. 3 replied that the renewal application should be in accordance with the resurveyed map and thereafter, the said Opp. Party has not executed the lease deed in respect of the resurveyed area, but it applied for renewal of the mining lease on which the Opp. Party No. 3 replied that the renewal application should be in accordance with the resurveyed map and thereafter, the said Opp. Party No. 6 has submitted its renewal application in accordance with the resurveyed map. From the comparative map annexed to the Writ Petition it appears that the Petitioner's mining area is at the southern-most point of the mineral area, which has been shifted further south after the resurvey. From Annexure-6 and Annexure-7, the report of the R. I. and the report of the Tahasildar, it is clear that the resurveyed mining area of the Petitioner, which includes plot Nos. 583, 661, 662, 659, 788, 650, 785, 652, 653, 654, 659, 664, 667, 666 and 665 are private agricultural lands of some tribal people and as per the report of the Tahasildar, the said areas are under the Dengula Grama Panchayat. 11. It, therefore, appears that the assertions made in paragraph-16 of the Writ Petition have remained un-controverted as the same has not been countered by any of the Opp. Parties in their respective counter affidavits. Thus, this Court has no hesitation to come to the conclusion that after resurvey, the plots, which have been now included in the mining area of the Petitioner consist of agricultural lands, Gharabari plots and also a hamlet of Scheduled Tribe persons and some areas of village Raikela, which have never been prospected and found to be containing minerals. The mining lease granted in favour of the Petitioner, which has been annexed is Annexure-1 to the Writ Petition is a lease deed in Form- K as prescribed under Rule 31 of the Minerals Concession Rules, 1960. The said lease is a registered one and is valid up to the year 2012. In the schedule to the said lease, specific plot numbers with areas have been mentioned. The said lease deed, therefore, authorizes the Petitioner-lessee to carry on mining operation over the lease hold area which has been clearly specified by describing its boundaries in the lease deed. 12. In the counter affidavit filed by the Opp. In the schedule to the said lease, specific plot numbers with areas have been mentioned. The said lease deed, therefore, authorizes the Petitioner-lessee to carry on mining operation over the lease hold area which has been clearly specified by describing its boundaries in the lease deed. 12. In the counter affidavit filed by the Opp. Parties 1 to 4, except stating that a resurvey was made as per order of the erst-while Director of Mining and Geology, Orissa vide his letter dated 22.2.1991 and on the basis of the map furnished by the said Director and boundary descriptions appended to the respective mining lease deeds in the order of their dates of execution, with reference to the trijunction stone pillars established before demarcation, the mining area of all mine owners including the Petitioner was shifted downwards and such demarcation was approved by the erstwhile Director of Mining and Geology, Orissa vide his letters dated 24.7.1992 and 4.8.1995, no reason has been assigned as to why after grant of the mining lease in favour of the Petitioner as per the provisions of the M.M.D.R. Act and the Mineral Concession Rules, there was necessity for a resurvey. Further, this Court finds that upon resurvey, lands, which are agricultural lands belong in to private sthitiban raiyats, homestead lands over which houses of private persons are situated, a tribal village and a portion of the area belonging to the Dangula Grama Panchayat, which could not have been granted as a mining lease, have been included in the lease area of the Petitioner. 13. In view of the above admitted facts, we are of the opinion that The resurvey conducted over the mining areas of the Petitioner by the Opp. Party No. 1 is wholly arbitrary and illegal and, as such, the letter under Annexure-4 issued by the Mining Officer, Koira to the Petitioner directing him to stop all mining activities within the disputed area (the mining area of the Petitioner, which has now fallen within the mining area of the Opp. Party No. 5) cannot be sustained. As a consequence, the decision taken by the Deputy Director of Mines, Koira pursuant to the orders of this Court passed in W.P.(C) No. 10615 of 2005 under Annexure-5 to the Writ Petition also cannot be sustained. The said Annexures-4 and 5 are, therefore, quashed and the Opp. Party No. 5) cannot be sustained. As a consequence, the decision taken by the Deputy Director of Mines, Koira pursuant to the orders of this Court passed in W.P.(C) No. 10615 of 2005 under Annexure-5 to the Writ Petition also cannot be sustained. The said Annexures-4 and 5 are, therefore, quashed and the Opp. Parties 1 to 4 are directed to allow the Petitioner to continue his mining operation over the area leased out to him under the mining lease vide Annexure-1 to the Writ Petition till expiry of the said lease period, i.e., 29.1.2012 subject to further renewal, if any. 14. The Writ Petition is accordingly allowed, but in the circumstances without any cost. B.P. Das, J. 15. I agree. Final Result : Allowed