11 (4) (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently; or
1. Object
The legislature is very conscious about the protection of valuable rights of the landlord to keep his leased out premises intact. The principal behind the sub section is that no limited estate holder is entitled to commit any waste in the premises. The principles of equity deal with what is waste and what is not a waste. In order to satisfy the ingredients of waste; the act done by the person with limited estate should either (1) diminish the value of the property or (2) increase the burden on the property or (3) impair the evidence of title. But ameliorating wastes does not include the acts mentioned in the above subsection. But the subsection does not prevent the tenant from changing the building in such a manner enabling him to use the building for his business unless such change does not involve material alternation of permanent character (A detailed discussion of these aspects has been made under Section 17 of this Act). But the Act does not define the word ‘material alteration’.
2. Destroy or reduce value or utility
In order to attract the conditions of this provision the act of the tenant must either destroy the value or utility of the building, materially and permanently, or reduce the value or utility of the building materially and permanently. The intention of the legislature is very clear, and the tenant need not be given a chance for curing his faults. Or else the section would contain provision for giving notice as provided in Section 11 (2) and 11 (4) (i) of this Act. Value means worth and utility means the condition of being useful or profitable. So any act done by a tenant which affects the usefulness or profitability of a building, adversely, would attract this ground. While deciding whether there is any reduction in the utility, the court has to look into the nature, age, and condition of the building at the time of lease and at the time of petition. Further it has to be ascertained that whether the reduction or destruction is the result of act of tenant. The awareness of the landlord at the time of letting out, about the nature of business and consequences thereof, does not absolve the tenant from use the building in such a manner destroying or reducing the utility of the building. Again this section does not enable the tenant to do acts, which increase the value or utility of the building, if such acts will affect the title of the landlord. The words destroy or reduce is connected to both value and utility with same force and includes the value for clarity of the title of the landlord also.
The act of the tenant amounting either to reduce or destroy either value or utility will attract this provision. The value or utility is disjunctive reduction or destruction of either of it will constitute a ground for eviction if such reduction or destruction is material and permanent. Material and permanent are used in conjunctive manner hence reduction or destruction must be material and permanent, both the character is to be present, for such reduction or destruction in order to constitute the ground.
Two rooms made into one by demolishing a wall, without the consent of landlord. The tenant has no right to demolish the wall and to say that thereby the value and utility are increased. Landlord had designed and built the rooms by spending money and materials to suit his need and utility. Besides, by demolishing the wall in between the rooms, the structural strength of the building is reduced. The landlord is entitled to order of eviction.
The sheds which were recently constructed were of a permanent nature, which could not be dismantled without substantial damage to the structure and, in any event, by making the construction of the sheds in question the petitioner had committed acts likely to impair materially the value and utility of the premises and the land leased out to him.
3. Materially and permanently
The court has to look whether the act of the tenant has resulted in destruction or reduction of value or utility of the building. If the answer is positive then the court has to look into whether such destruction or reduction is material to the building and even if it is material the court has to verify whether such material reduction of value or utility is of permanent nature, if all the test is positive the court has to order eviction under this ground.
Tenant demolishing boundary wall of the property demised and put up corridor to connect his shop building with the godown in adjoining property of another landlord. Due to this the boundary line has been completely obliterated leading to complications, tenant is liable to be evicted. The tenant remodeling the building by changing shutters, doors and flooring amounts to waste.
A user of the lease property as a person of ordinary prudence is a right of the tenant. The action of the tenant replacing wooden split shutters with rolling shutters for safety cannot be said to be material alteration. Tenant constructed a wooden balcony in the showroom. The court held that it did not amount to material alternation.
The destruction or damage has to be adjudicated from the standpoint of the landlord. The word material and permanent are not disjunctive.
Destruction of compound wall and removal of gate affect the security and identity of the property. Demolition of wall in front of the building obstructing the view will not fall within the mischief of S. 11 (4) ii. But the landlord can sue for damages. Landlord cannot get an order of eviction on mere proof of minor destruction or alteration even if it results in marginal reduction of value or utility. Minor alterations that has not resulted in diminishing the value and utility of the building materially and permanently, even if made, is no ground for eviction. The wooden planks on the front door of the building were replaced by rolling shutters. The alteration did not cause any damage or deterioration to the building.
As observed in Shanmugan v. Rao Saheb 1988 (1) KLT 86, Landlord cannot get an order of eviction on the ground of material & permanent reduction of value or utility merely on the proof of minor destruction or alterations, even if it resulted in reduction of value or utility.
The fact that the tenant did not care to protect the furniture in the building does not enable the landlord to complain the building has been used in such a manner as to destroy or reduce its value or utility permanently and substantially. Tenant repaired existing bathrooms and cement plastering was made. It will not amount to any material alteration resulting in reducing in value and utility of the building. And landlord is not entitled for eviction. Minor alterations which will not diminish the value of the building and which is not a permanent character, cannot be said to be alterations which would affect the worth or utility of the building.
The destruction or reduction of utility or value of the building must be of a reasonably substantial magnitude. Since the expressions “materially and permanently” are used conjunctively, the Legislature has indicated that even material alterations of a temporary nature would not help the landlord in getting an order of eviction.
4. Facts to be considered
User of land well and structures appurtenant to the main building in such a manner as to reduce its value and utility materially and permanently attracts S. 11 (4) ii. Additional construction on land appurtenant to the building reduces the value and utility of the building materially and permanently.
The impairment of the value or utility of the building is to be considered in the point of view of the landlord. If there is a stipulation in the lease deed that the tenant shall not make any additional construction or alteration to the tenanted building, it is binding on the tenant.
The tenant reconstructed the building by replacing tiled roof by asbestos and shutters were placed instead of doors, older walls were replaced by new walls in such a way as to enhance its utility but against the consent and will of the landlord. The ingredients of section 11 (4)ii are satisfied and hence the tenants are liable to be evicted.
5. Defenses
The tenant can take the defense that the building does not belong to the petitioner and thus deny the title of the landlord. The landlord has to go to the Civil Court and there too the tenant gets all the protection of the Rent Control Act. The landlord has to prove the ground under this act in the civil court also, the tenant is not deprived any of his right by denying the title of the landlord.
The petition on the ground of reducing value or utility of the building materially and permanently can be defended that the work done does not reduce value materially and permanently. Reduction of value should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. Likewise the reduction of utility should be material as well as permanent. Both the limbs, material and permanent nature, must be present in order to constitute the ground. And further plead that the work done has only enhanced the value or utility.
The conduct of tenant in the proceedings cannot be taken against him when deciding the case on merit. Any of the ground under this Act is to be proved to evict the tenant. Order must be in terms of the provisions of the Act.
Rented Building Owners Association Kerala 
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