JUDGMENT

Ong CJ:

This appeal raises for the first time the proper interpretation of cl 4 in the statutory form of mining sub-lease, as prescribed by Sch X of the Mining Enactment (Cap. 147), which provides -

4. That the sub-lessee shall work the said land in an orderly, skilful and workmanlike manner and subject to the provisions of the Mining Enactment and shall be liable to indemnity the sub-lessor for any expenses which he may incur, whether as fine inflicted on him or otherwise, on account of any breach of this condition by the sub-lessee.

The action arose out of an application made originally in the Court of the senior inspector of mines which was transferred for adjudication to the High Court in Ipoh at the instance of the sublessors - for cancellation of a sublease on the ground of breach of a condition thereof by the sublessees. The breach complained of lay in the planting of tapioca on 60 acres of the mining land, either by the sublessees or with their connivance, which the sublessors claimed was such contravention of the Mining Enactment as rendered the sublease liable to cancellation in accordance with an express condition therein.

The facts may be set out in a few words, since the findings of the trial Judge are not challenged in this appeal. The sublessors, now respondents, had, on 7 August 1965 subleased approximately 188 acres of mining land to the appellants. Part of the land, comprised in Lots 2312 and 2311, was under young rubber still not ripe for tapping. While carrying on mining operations elsewhere on the subleased land. The appellants caused or permitted the felling of about 60 acres of this rubber for the planting of tapioca, without the respondents' knowledge or consent, This occurred between September 1967 and February 1968. Complaint was first made to the senior inspector of mines on 17 June 1968, followed by an application to the mines Court on 16 July 1968 for cancellation of the sublease. The statement of claim was filed in the High Court on 16 November 1968 and judgment given for cancellation of the sublease on 17 July 1969. Evidence adduced at the trial showed that the total value of tin-ore won in 1967 by the appellants' mining operations was $1,297,826.71, on which the tribute paid to the respondents, at the rate of 15%, was $192,638.74. The total value of tin-ore won in 1968 was $1,071.644. The gross profits from the tapioca crop - without allowing for expenses incurred - which the appellants would have stood to gain by their default was, according to conflicting estimates, as high as $72,000 or as low as $24,000. In the Judge's view, even the lesser figure was "not inconsiderable".

The question which now falls to be determined is whether the user of the land for tapioca constituted such a breach of cl. 4 of the sublease as entitled the respondents to its cancellation. This clause consisted of two paragraphs: (a), which is not to be found in cl. 4 of Sch X, and (b), which followed the form in the Schedule, with the addition of the following words "or any of the express conditions contained in the said mining certificates or mining leases to be issued in place thereof". For present purposes, however, the departure from the prescribed form is wholly irrelevant and immaterial. It will be necessary only to refer to cl 4 in the Sch as quoted at the beginning of this judgment.

Under s. 97(ii)(b) of the Mining Enactment "the senior inspector shall have power in his discretion to cancel a sublease upon proof to his satisfaction that the sublessee has not worked the land in accordance with cl 4 of the sublease in Sch X. or has by his default rendered the land liable to forfeiture under this Enactment."

Here it may be observed that there is a distinction between cancellation of a sublease - which would be at the instance of the sublessor - and its forfeiture. In the latter case, action is taken to that effect by the State, in accordance with provisions laid down by s. 22. The penalty of forfeitur